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Montague v. Williams

United States District Court, N.D. Illinois

May 30, 2017

Ramon Montague #N-62212, Plaintiff,
v.
Tarry Williams, Defendants.

          MEMORANDUM OPINION AND ORDER

          REBECCA R. PALLMEYER United States District Judge

         Plaintiff Ramon Montague, a prisoner at Stateville Correctional Center, brought this pro se civil rights action under 42 U.S.C. § 1983 against multiple administrative and engineering employees of the Illinois Department of Corrections, alleging unconstitutional conditions of confinement. For the reasons set forth below, Defendants Williams and Lemke's amended motion to dismiss [25] is granted in part and denied in part. Plaintiff's response [28], docketed as a motion, is terminated.

         BACKGROUND

         Plaintiff alleges in his complaint that Defendants failed to remedy unconstitutional conditions of his confinement at Stateville, including exposure to birds and bird feces, mice, mold, contaminated water, and lead paint. (Compl. [1] at 7-23.) Defendants have moved to dismiss [25], making three arguments: (1) Plaintiff's complaint should be dismissed in its entirety pursuant to Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011) because Plaintiff failed to disclose his litigation history; (2) Plaintiff's claim regarding exposure to lead-based paint should be dismissed for failure to state a claim; and (3) Plaintiff's claim for injunctive relief must be dismissed because he is a member of the class certified in Dobbey v. Weilding, Case No. 13 C 1068 (N.D. Ill.) (Dow, J.) In response, Plaintiff filed a motion [28] asking that Defendants' motion to dismiss be denied.

         LEGAL STANDARD

         To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Lodholtz v. York Risk Servs. Group, Inc., 778 F.3d 635, 639 (7th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility 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). The factual allegations in the claim must be sufficient to raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). The court “construe[s] all well-pleaded facts and draw[s] all inferences in the light most favorable to the nonmoving party.” See Vesely v. Armslist LLC, 762 F.3d 661, 664 (7th Cir. 2014).

         A plaintiff may plead himself out of court under Rule 12(b)(6) by alleging and thereby admitting the elements of an affirmative defense. See U.S. Gypsum Co. v. Ind. Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003).

         DISCUSSION

         I. Hoskins Does Not Require Dismissal of this Case.

         Defendants argue that Plaintiff's complaint should be dismissed pursuant to Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011) because he failed to disclose his litigation history. Providing a complete record of past litigation is necessary to enable the court to determine whether a plaintiff has accumulated three dismissals under 28 U.S.C. § 1915(g), and whether a complaint asserts claims that are duplicative of or are related to claims stated in a prior suit.

         At the time Plaintiff filed his complaint in this case, he had previously filed five cases in the Northern District of Illinois: Montague v. Wexford Health Sources, Inc. , Case No. 11 C 5080 (N.D. Ill.) (Marovich, J.); Montague v. Hardy, Case No. 11 C 1552 (N.D. Ill.) (Gettleman, J.) (habeas); Montague v. Detella, Case No. 97 C 2872 (N.D. Ill.) (Gettleman, J.) (habeas); Montague v. Detella, Case No. 97 C 2033 (N.D. Ill.) (Gettleman, J.) (habeas); and Bey v. Morrison,, Case No. 92 C 7325 (N.D. Ill.) (Marovich, J.). Plaintiff had also filed a case in the Southern District of Illinois: Montague v. Lane, Case No. 3:88-cv-03270 (S.D. Ill.) (Cohn, J.) In his complaint in this court, Plaintiff disclosed only one of these suits: Case No. 11 C 5080, but he noted, on the page dedicated to litigation disclosure, that he was unable to retrieve other information and that it “should be a matter of the record.” (Compl. at 5.)

         The standard Section 1983 complaint form used by Plaintiff requires him to furnish a list of all lawsuits Plaintiff had filed in any state or federal court in the United States and warns that failure to provide complete information may result in dismissal of the complaint. (Id. at 4.) In Hoskins, 633 F.3d at 543-44, the Seventh Circuit upheld a district court's finding that a litigant's failure to fully disclose his litigation history, as expressly instructed on the complaint form, amounted to fraud and warranted immediate dismissal. This case differs, however. Plaintiff Montague did make an effort to disclose part of his litigation history, and all of the cases he failed to disclose (with one exception: Case No. 11 C 1552 (a habeas action)) are more than twenty years old. The age of these cases undermines any inference that Plaintiff's omission was intended as a fraud on the court. In any event, the purpose of the litigation history disclosure requirements are to track “strikes” assigned pursuant to 28 U.S.C. §1915(g) and to track duplicate claims brought in different cases. Because “strikes” are not issued as a sanction in federal habeas actions and it is extremely unlikely that a duplicate claim could have been brought in a case that is more than twenty years old, the court declines to invoke the discretionary sanction recognized in Hoskins.[1]

         II. Plaintiff May Proceed on His Claim of Lead Paint Contamination.

         Defendants' second argument is that Plaintiff's Count 4, regarding his exposure to toxic lead paint, should be dismissed. Plaintiff claims in his complaint that there is lead paint on the walls that is blistered and peeling due to water leaking through the walls. (Compl. at 21.) He alleges, further, that the paint falls away from the walls, exposing him to toxic compounds including lead carbonate, lead chromate, barium sulfate, and cadmium. (Id. at 21-22.) These compounds cause cancer, Plaintiff alleges, as well as other conditions including an intestinal condition known as Painter's Colic. (Id. at 22.) ...


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