United States District Court, S.D. Illinois
JARVIS POSTLEWAITE, #R-25461, and DAMEON COLE, #R-13404, also known as DIVINE DESIRE COLE, Plaintiff,
SALVADOR GODINEZ, DR. KAY, STEVEN B. DUNCAN, DR. COE, BETH TREDWAY, MS. DAVIS, C. RAKI, LIEUTENANT RAY, and JEFFERY MOLENHOUR, Defendants
Jarvis Postlewaite, Plaintiff, Pro se, Sumner, IL.
Dameon Cole, also known as Divine Desire Cole, Plaintiff, Pro se, Sumner, IL.
MEMORANDUM AND ORDER
J. Phil Gilbert, United States District Judge.
Plaintiffs Jarvis Postlewaite and Dameon Cole jointly filed a pleading, entitled " Petition for Preliminary Injunction Relief and to Show Cause for a Temporary Restraining Order" (Doc. 1), which is now before the Court for consideration. In the petition, Plaintiffs seek a prison transfer for numerous reasons that are not common to both. Before the Court can decide this petition, several preliminary matters must be addressed.
First, Plaintiffs failed to pay a filing fee for this action at the time they filed their petition. Second, they also failed to file a complaint. Finally, Plaintiffs filed their petition jointly, but did not indicate whether they intend to proceed in a single action together or separately. A discussion of each of these preliminary matters is followed by a discussion of the pending petition and request for immediate injunctive relief below.
1. IFP Status
Plaintiffs each incurred the obligation to pay a filing fee for this action at the time they filed their petition. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). The fact that Plaintiffs filed the petition jointly does not relieve either of this obligation. They have two options for paying the fee. Each Plaintiff can either prepay the full filing fee of $400.00, which includes an administrative fee of $50.00, or seek leave to pay a reduced fee of $350.00, which excludes payment of the $50.00 administrative fee, over time according to a statutory formula by filing a Motion and Affidavit to Proceed in District Court Without Prepaying Fees or Costs (" IFP Motion"). Plaintiffs did neither.
On November 17, 2014, the Clerk of this Court notified both Plaintiffs in writing of their obligation to pay the filing fee (Doc. 2). They were given thirty (30) days to pay the $400.00 fee in full or to file a properly completed IFP Motion. The Clerk advised Plaintiffs that failure to do one or the other could result in dismissal of their case. This deadline has not yet passed.
The obligation remains. So that there is no confusion about each Plaintiff's responsibility for paying this fee, the Court shall enter an order that is consistent with the Clerk's instructions, with a new deadline that is slightly extended, as follows: Plaintiffs are hereby ORDERED to pay the full $400.00 filing fee for this action or to file a properly completed IFP Motion on or before December 30, 2014. Failure to do so will result in dismissal and the imposition of a $400.00 filing fee for the action. Further, regardless of whether each Plaintiff files an IFP Motion, a separate order shall issue for the deduction of payments from each Plaintiff's prison trust fund account until the fee is paid in full. See 28 U.S.C. § 1915(b).
Despite the fact that both Plaintiffs have filed numerous lawsuits in this District and others and, presumably, share considerable litigation experience between the two, they neglected to file a complaint in this action. Plaintiffs did not file a complaint with their petition. No complaint has since been filed. Further, the instant petition, which was filed without a case number listed on the cover page, lacks sufficient overlap in claims and parties to belong in another one of the pending lawsuits.
The Federal Rules of Civil Procedure provide that " [a] civil action is commenced by filing a complaint with the court." Fed.R.Civ.P. 3. In fact, " the first step in the action is the filing of the complaint." Id., Advisory Committee Notes, 1937 Adoption. Without one, the Court cannot ascertain the basis for jurisdiction. See Bell v. Hood, 327 U.S. 678, 681-82, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Greater Chicago Combine and Ctr. v. City of Chicago, 431 F.3d 1065, 1069-70 (7th Cir. 2005). More to the point, the Court cannot consider an application for injunctive relief in the absence of a viable complaint.
Therefore, the Court must first determine whether a viable claim has been stated by either Plaintiff before deciding whether injunctive relief should be granted. This requires the Court to conduct a preliminary review of the pleading under 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to promptly screen prisoner complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b). When reviewing the allegations in light of this standard, the Court finds that the petition states several viable constitutional claims.
A separate discussion of each Plaintiff's claims is appropriate, particularly given the organization of the petition. Attached to the petition are two exhibits. The first, i.e., " Exhibit A-1, " sets forth those claims raised by Plaintiff Postlewaite (Doc. 1, pp. 2-4). The second, i.e., " Exhibit B-1, " sets forth those claims raised by Plaintiff Cole (Doc. 1, pp. 5-7). Given this clear organization of the petition into two sets of claims that are specific to each Plaintiff, the Court deems it appropriate to divide its discussion of the claims into two separate sections, according to each Plaintiff.
Exhibit A-1 outlines the following counts that are suggestive of a civil rights complaint brought pursuant to 42 U.S.C. § 1983:
Count 1: Defendants Davis and Tredway were deliberately indifferent to Plaintiff Postlewaite's need for mental health treatment for auditory delusions, depression, and anger, in violation of the Eighth Amendment (Doc. 1, p. 2);
Count 2: Defendant Duncan failed to protect Plaintiff Postlewaite from inmate assaults arising from his lack of hygiene, in violation of the Eighth Amendment, by denying his emergency grievances seeking protective custody (Doc. 1, p. 3);
Count 3: Defendant Godinez ignored or denied Plaintiff Postlewaite's grievances seeking mental health treatment and protective custody (Doc. 1, p. 3);
Count 4: Defendant " Transfer Coordinator" ignored Plaintiff Postlewaite's request for a prison transfer that he claims was necessitated by " reckless acts, " poor mental health/medical care, denial of protective custody, false accusations of gang affiliation, and loss of personal property (Doc. 1, p. 3); and
Count 5: Defendant Counselor Ray subjected Plaintiff Postlewaite to " blunt discrimination" and retaliation after Plaintiff named him in a lawsuit (Doc. 1, p. 3).
Claims Subject to Further Review
After carefully considering the allegations in support of each claim, the Court finds that Count 1 states a viable claim against Defendants Davis and Tredway, and Count 2 states a viable claim against Defendant Duncan. Accordingly, Plaintiff Postlewaite shall be allowed to proceed with these claims. As will be explained in more detail below, however, the claims are unrelated to one another and shall be severed into separate actions.
Claims Subject to Dismissal
Count 3 -- Denial of Grievances
No viable claim has been stated against Defendant Godinez for ignoring or denying Plaintiff Postlewaite's grievances complaining about the denial of mental health treatment or protective custody. Plaintiff does not sue Defendant Godinez in his individual capacity for monetary damages. Even if he had done so, the individual capacity claim against Defendant Godinez would fail, based on the allegations in the petition.
Section 1983 creates a cause of action based on personal liability and predicated upon fault; thus, " to be liable under [Section] 1983, an individual defendant must have caused or participated in a constitutional deprivation." Pepper v. Village of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005) (citations omitted). The doctrine of respondeat superior does not apply to actions filed under Section 1983. See, e.g., Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008). No allegations suggest that Defendant Godinez personally participated in denying Plaintiff mental health treatment or denying him access to protective custody. By all indications, Defendant Godinez, who is the director of the Illinois Department of Corrections, reviewed and signed off on the denial of these grievances. However, the alleged ...