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Span v. Melvin

United States District Court, C.D. Illinois

June 12, 2018

SAMUEL SPAN, Plaintiff,
v.
MICHAEL MELVIN, et. al. Defendants

          MERIT REVIEW ORDER

          JAMES E. SHADID UNITED STATES DISTRICT JUDGE.

         This cause is before the Court for merit review of the Plaintiff's complaint. The Court is required by 28 U.S.C. §1915A to “screen” the Plaintiff's complaint, and through such process to identify and dismiss any legally insufficient claim, or the entire action if warranted. A claim is legally insufficient if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §1915A.

         Plaintiff, a pro se prisoner, claims Defendants Warden Michael Melvin, Assistant Warden Emily Ruskin, Assistant Warden Teri Kennedy, Mental Health Care Administrator Kelly Renzi, Director of Mental Health Services Melvin Hinton, Illinois Department of Corrections (IDOC) Director John Baldwin, Lieutenant Smith, Correctional Officer Andrew Kromiga, Mental Health Workers John Soko, Sara, Cheshareck, Andrea Moss, Barbara Browning, Crystal Carlson, and Jessica Otto, and unspecified John Doe Defendants violated his constitutional rights at Pontiac Correctional Center.

         Plaintiff says he suffers from a serious mental illness and he has a history of suicide attempts. Plaintiff says he is classified within IDOC as seriously mentally ill, but Plaintiff does not state his specific diagnosis, nor does he provide any other information about his condition.

         On October 2, 2017, Plaintiff met with Mental Health Worker Ortega and gave her a note “stating that he felt that due to going events he may have to ‘defend' himself against security staff.” (Comp., p. 4). Defendant Ortega responded by placing Plaintiff on suicide watch. Plaintiff says he never stated, nor implied that he intended to hurt himself.

         Defendant Kromiga applied handcuffs and leg shackles before taking Plaintiff to the suicide watch cell on October 2, 2017. However, after he was placed in the cell by Defendant Kromiga and another, unidentified officer, Defendant Kromiga refused to remove the leg shackles. When Plaintiff asked why, Defendant Kromiga stated, “per Lieutenant Smith they stay on. You guys need to stop calling crisis on our shift.” (Comp., p. 5). Plaintiff says he remained in leg shackles for two days. When they were finally removed, Plaintiff says his legs were swollen and he had cuts on his ankles.

         Plaintiff then describes the typical conditions within a suicide watch cell. For instance, Plaintiff was given a suicide smock, a suicide blanket, no mattress, and he was on ten minute watches. Plaintiff says he suffered with sleep deprivation, hallucinations, and his mental state deteriorated during this time. Plaintiff remained in the suicide watch cell for 28 days until October 30, 2017.

         Plaintiff met with medical staff after his release on November 14, 2017. Plaintiff says he was suffering with severe back and hip pain from due to sleeping without a mattress while on suicide watch. Plaintiff was prescribed pain medication.

         Plaintiff has listed four counts at the conclusion of his complaint. (Comp., p. 7-11). First, Plaintiff says Defendants violated his Fourteenth and Eighth Amendment rights when he was placed in a suicide watch cell for 28 days when he was not suicidal. Plaintiff says his mental health deteriorated and he was left in leg shackles for two days. Plaintiff also complains about his specific living conditions. Count II alleges Defendants were deliberately indifferent to his medical needs when Plaintiff was not provided mental health care during his stay on suicide watch. Counts III and IV allege violations of the Americans with Disabilities Act (ADA) and Rehabilitation Act (RA).

         Based on the claims in the complaint, Plaintiff he has alleged Defendant Mental Health Worker Ortega violated his Eighth Amendment rights when she placed Plaintiff on suicide watch for 28 days, but failed to provide or require adequate mental health care during this time. Plaintiff has also alleged Defendants Kromiga and Lieutenant Taylor violated his Eighth Amendment rights when he was forced to stay in leg shackles for two days.

         While Plaintiff also alleges he was forced into a suicide watch cell even though he was not suicidal, he has not articulated a constitutional violation based on this fact alone. See Starks v. Couch, 2009 WL 331357, at *2 (S.D.Ill. Feb. 11, 2009)(plaintiff “has not stated a claim for a due process or a First Amendment violation because there is no constitutional right to avoid being placed on suicide watch.”). In fact, several courts have noted “[t]emporary placement on suicide watch, even when not necessary, does not implicate a liberty interest protected by the Due Process Clause, nor does it amount to cruel and unusual punishment under the Eighth Amendment.” Jones v. Lee, 2012 WL 683362, at *4 (E.D.Mich. March 2, 2012)(listing cases); see also Johnson v. McVea, 2016 WL 1242840, at *6 (E.D.La. March 7, 2016)(listing cases); Hunter v. Williams, 2013 WL 3467097, at *2 (M.D.Tenn., July 10, 2013)(listing cases); “Marshall v. Burden, No. 5:09CV00128, 2010 WL 670079, at *5 (E.D.Ark. Feb. 22, 2010); Cherer v. Frazier, No. 2:06- cv-00502, 2007 WL 2406844, at *5-6 (D.Nev. Aug. 16, 2007). In addition, from Plaintiff's pleading, it appears he saw the mental health worker after requested crisis watch.

         Nonetheless, for the purposes of notice pleading, it is possible Plaintiff can demonstrate an Eighth Amendment violation based on the specific problems with his cell. For instance, Plaintiff claims he was never provided a mattress and the lights were left on for 24 hours a day. However, it is not clear from Plaintiff's complaint who knew about the specific conditions of his cell. While Defendant Mental Health Worker Ortega ordered his placement on suicide watch, Plaintiff does not allege any other contact. In addition, Plaintiff has listed several other individuals in the list of Defendants, but he has either failed to mention their involvement in the body of his complaint, or he has named them as Defendants purely because they were supervisors. Neither is sufficient to establish liability in a lawsuit pursuant to 42 U.S.C. §1983. See Potter v Clark, 497 F.2d 1206, 1207 (7th Cir. 1974)(“Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed, even under the liberal construction to be given pro se complaints.”); see also Smith v. Gomez, 550 F.3d 613, 616 (7th Cir. 2008)(supervisor liability not permitted under § 1983). Instead, Plaintiff must identify Defendants who had personal involvement with Plaintiff's living conditions during the 28 days.

         If the Plaintiff believes he can clarify this allegation, he may file a motion for leave to amend with a proposed amended complaint attached within 21 days of this order. The amended complaint must stand complete on its own, must include all claims against all Defendants, and must not make reference to any previous complaint.

         Finally, Plaintiff has failed to state a claim pursuant to either the ADA or RA. To establish a violation of Title II of the ADA, “the plaintiff must prove that he is a ‘qualified individual with a disability, ' that he was denied ‘the benefits of the services, programs, or activities of a public entity' or otherwise subjected to discrimination by such an entity, and that the denial or discrimination was ‘by reason of' his disability.” Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015). Analysis under the RA is essentially the same, except the Act also required the entity denying access receive federal funds. See Jaros v. Illinois Department of Corrections,684 F.3d 667, 671-72 (7th Cir. 2012). In addition, claims pursuant to the ADA or RA cannot proceed against “individual employees of ...


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