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Pace v. Myers

United States District Court, S.D. Illinois

October 17, 2016

DANIEL PACE Plaintiff,
v.
ANDY MYERS, PAT GREENWOOD, BILL GROSS, DARRIN BARBEE, and RAMIEE PHILLIPS Defendants.

          MEMORANDUM AND ORDER

          J. Phil Gilbert, U.S. District Judge.

         Plaintiff, a former inmate at the Clay County Jail, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff seeks equitable relief and damages for deprivations of his constitutional rights. This case is now before the Court for a preliminary review of the Amended Complaint pursuant to 28 U.S.C. § 1915A, which provides:

(a) Screening - The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal - On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A.

         An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, courts “should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816, 821 (7th Cir. 2009).

         Plaintiff originally filed this action on May 16, 2016 against Andy Myers and Pat Greenwood. (Doc. 1). The Court dismissed this action on June 30, 2016, although the dismissal was without prejudice as to claims 1, 2, 5, 8, and 9. (Doc. 12). On July 11, 2016, Plaintiff filed an Amended Complaint, which additionally names Bill Gross, Darrin Barbee, and Ramiee Phillips as Defendants, as well as provides more factual background. The Court now turns to the Amended Complaint for review pursuant to 1915A. The Court notes that although it will consider the exhibits attached to Plaintiff's Complaint at Doc. 1-1, the allegations in the Amended Complaint must be able to stand on their own, as the Amended Complaint supersedes the Complaint, rendering it a nullity.

         The Amended Complaint

         Plaintiff was booked into the Clay County Jail on December 10, 2015. (Doc. 16, p. 7). He observed two other inmates make free phone calls, but when he asked Darrin Barbee for a free phone call, Barbee denied it. (Doc. 16, p. 7). Plaintiff cannot call his family collect. (Doc. 16, p. 7). Plaintiff filed a grievance on this issue, which Greenwood denied. (Doc. 16, p. 7) (Doc. 1-1, p. 10).

         On January 13, 2016, Plaintiff requested a copy of a legal directory, the civil rules of procedure, and a § 1983 complaint form. (Doc. 16, p. 6). Myers denied the request. (Doc. 16, p. 6). The response indicated that no legal directory will provide numbers if requested. (Doc. 1-1, p. 8). The response further stated that the rules of civil procedure are available through Plaintiff's attorney or from the law library. (Doc. 1-1, p. 8). Plaintiff was also told to draft his own complaint. (Doc. 1-1, p. 8).

         On April 21, 2016, Plaintiff requested postage to mail in the original complaint in this case; Plaintiff needed postage because the complaint was heavier than he could mail with a first class stamp. (Doc. 16, p. 6). Myers denied that request, stating that he was entitled to one stamp per week, and that rollovers were not permitted. (Doc. 16, p. 6). The Court notes that Plaintiff filed his case on May 16, 2016. (Doc. 1). On June 10, 2016, Plaintiff again requested law library access and copies. (Doc. 16, p. 12). Myers responded stating, “this is not county jail standards, contact your court appointed lawyer.” (Doc. 16, p. 12). Plaintiff filed another grievance on June 16, 2016 because he wished to access the law library in order to work on the present case. (Doc. 16, p. 12).

         Plaintiff had a phone call with his attorney, Scott Ealy on January 18, 2016. (Doc. 16, p. 6). Bill Gross and Pat Greenwood monitored the call, even after Plaintiff requested privacy. (Doc. 16, p. 6). The Amended Complaint indicates that all phones in the Clay County jail are monitored. (Doc. 16, p. 7). The grievance response indicates that the monitoring was performed at the request of Plaintiff's attorney. (Doc. 1-1, p. 7). Plaintiff alleges that his attorney did not request monitoring. (Doc. 16, p. 6). Plaintiff requested a call with his attorney on March 17, 2016. (Doc. 16, p. 7). Plaintiff alleges that he is unable to call his attorney collect, and that he has seen other inmates, like Matt Brown, make direct calls to their attorneys, presumably without having to call collect. (Doc. 16, p. 7). Plaintiff requested another call on March 27, 2016, which Myers also denied. (Doc. 16, p. 7). Plaintiff believes that he has been treated unfairly and differently from other inmates. (Doc. 16, p. 7).

         Plaintiff broke a tooth while eating lunch on April 9, 2016. (Doc. 16, p. 8). He requested pain medication from Phillips, who denied it because Plaintiff was indigent. (Doc. 16, p. 8). Plaintiff requested pain medication again the next day on April 10, 2016. (Doc. 16, p. 8). This time Gross denied the request. (Doc. 16, p. 8). On April 10, 2016, Plaintiff filed a grievance to Greenwood. (Doc. 16, p. 8). Greenwood responded by asking if Plaintiff wanted to see the dentist. (Doc. 16, p. 8) (Doc. 1-1, p. 17). Plaintiff said “yes, ” but Greenwood told him that no dentist in Clay County takes Medicaid. (Doc. 16, p. 8). Gross denied Plaintiff pain medication again on April 19, 2016; Greenwood “noted” Plaintiff grievance about the incident, but took no action. (Doc. 16, p. 8) (Doc 1-1, p. 18). Plaintiff also wrote a grievance to Myers regarding his broken tooth on April 19, 2016. (Doc. 1-1, p. 22). On May 4, 2016, Plaintiff was furloughed to rehab. (Doc. 16, p. 8). While he was there, he was treated for an infection in his broken tooth, which included prescription ibuprofen and an antibiotic. (Doc. 16, p. 8). He was eventually taken to Everyone's Family Dental to repair the tooth. (Doc. 16, p. 9).

         Plaintiff requested information on HIV/AIDS and STD testing. (Doc. 16, p. 9). Greenwood responded, “will check and let you know.” (Doc. 16, p. 9) (Doc. 1-1, p. 4). Plaintiff alleges that he has been an intravenous drug user, had unprotected sex, and fresh tattoos, putting him at high risk for those types of infections. (Doc. 16, p. 9). He further alleges that the jail offers no information regarding the availability of those tests, in violation of Illinois' County Jail Act. (Doc. 16, p. 9).

         On April 25, 2016, Plaintiff was transferred to St. Clair County for a court writ. (Doc. 16, p. 9). Clay County jail allegedly did not send any prescription medication with Plaintiff, and so he was without his medication for three days. (Doc. 16, p. 10). Plaintiff takes medication for anxiety, depression, and post-traumatic stress disorder. (Doc. 16, p. 10). He suffers from anxiety attacks, flashbacks, nightmares, and headaches. (Doc. 16, p. 10). He takes Buspirone and Citalopram for these conditions. (Doc. 16, p. 10). Myers denied ...


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