United States District Court, S.D. Illinois
JEREMY K. SMITH, SERGIO SALTER, DAVID ROBERTSON, DEVELL CURRY, LISA NIEPERT, BAYLEIGH HARTMAN, MICHELLE WILLIAMS and PATRICIA HOXSEY, Plaintiffs,
BOND COUNTY JAIL, and JEFF BROWN, Defendants.
MEMORANDUM AND ORDER
Phil Gilbert United States District Judge
matter is, once again, before the Court for case management
and for preliminary review of the Complaint pursuant to 28
U.S.C. § 1915A. The action was originally filed on
January 6, 2017 by eight detainees at Bond County Jail
(“Jail”) in Greenville, Illinois. (Doc. 1). The
Court entered a preliminary order in this matter on February
2, 2017. (Doc. 7). In it, each plaintiff, aside from the lead
plaintiff Jeremy Smith, was ordered to advise the Court in
writing, no later than March 6, 2017, whether he or she
wished to pursue his or her claims in group litigation.
Id. Two of the original plaintiffs, Lisa
Niepert and Michelle Williams, have asked to
remain parties to this group action. (See Docs. 14,
16). The remaining five plaintiffs failed to respond to the
Court's preliminary order.
initial matter, the Court concludes that joinder is not
appropriate. See Fed. R. Civ. P. 20(a)-(b), 21;
Chavez v. Illinois State Police, 251 F.3d 612, 632
(7th Cir. 2001). Therefore, each remaining plaintiff will be
required to pursue his or her claims in a separate action.
But before doing so, each remaining plaintiff must file an
amended complaint in his or her separate case because the
original complaint (Doc. 1) does not survive screening under
28 U.S.C. § 1915A.
Complaint was filed by 8 individuals who were or are in
custody at the Jail. (Doc. 1) Together, they set forth claims
against the Sheriff of Bond County Illinois, Jeff Brown, and
the Jail itself. (Doc. 1, p. 1). In the Complaint, the
plaintiffs claim that there is black mold in the
“bullpen” of the Jail as well as in the living
areas of the female plaintiffs. (Doc. 1, p. 3). They also
claim that “living in black mold is dangerous to their
lives” and that they have symptoms of sneezing,
coughing, headaches, nausea, and severe stomach cramps and
diarrhea. (Doc. 1, p. 3). The plaintiffs seek monetary
damages and permanent injunctive relief. (Doc. 1, p. 4).
Court entered a preliminary order in this matter on February
2, 2017. (Doc. 7). There, the Court explained the
difficulties associated with group litigation. (Doc. 7, pp.
2-4). The Court warned the plaintiffs of the risks and costs
inherent in such proceedings. Id. Plaintiffs were
then given an opportunity to withdraw from the group
litigation. See Boriboune v. Berge, 391 F.3d 852
(7th Cir. 2004).
plaintiff was ordered to advise the Court in writing whether
he or she wished to continue as a plaintiff in the group
action on or before March 6, 2017. (Doc. 7, p. 6). Any
plaintiff who wanted to pursue his or her claims individually
in a separate lawsuit was ordered to so advise the Court in
writing by the same deadline, and the Court would sever that
plaintiff's claims into a new action and assess a filing
fee in the severed case. Id. The plaintiffs were
informed that the only way to avoid the obligation
to pay a filing fee was to request dismissal from the action
in writing by this deadline. The Court explicitly stated that
“[a]ny plaintiff who simply does not respond to this
Order on or before March 6, 2017 will be obligated
to pay the filing fee and will also be dismissed from this
action for want of prosecution and/or failure to comply with
a court order under Federal Rule of Civil Procedure
41(b).” (Doc. 7, p. 7) (emphasis in original).
Lisa Niepert (Docs. 15, 16) and Michelle Williams (Doc. 14)
indicated that they wish to proceed together in this group
litigation. Plaintiffs Sergio Salter, David Robertson, Devell
Curry, Bayleigh Hartman, and Patricia Hoxsey failed to
respond to the Court's order by the deadline, thereby
triggering an obligation to pay the filing fee for this
action despite being dismissed for want of prosecution and/or
failure to comply with a court order under Federal Rule of
Civil Procedure 41(b). Lead plaintiff Jeremy Smith was not
required to respond in order to remain in this action. Below,
the Court will discuss why group litigation of the
plaintiffs' claims is inappropriate.
Review Under 28 U.S.C. § 1915A
Complaint is now subject to preliminary review 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
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). Frivolousness is an
objective standard that refers to a claim that any reasonable
person would find meritless. Lee v. Clinton, 209
F.3d 1025, 1026-27 (7th Cir. 2000). 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.
550 U.S. 544, 570 (2007). The claim of entitlement to relief
must cross “the line between possibility and
plausibility.” Id. at 557. At this juncture,
the factual allegations of the pro se complaint are
to be liberally construed. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
on the allegations of the Complaint, the Court finds it
convenient to designate a single count in this pro
se action. The parties and the Court will use this
designation in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court.
Count 1 - Unconstitutional conditions of confinement claim
against defendants for subjecting plaintiffs to health risks
from the black-mold contamination in the bullpen of the Jail