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BIRCH v. JONES

May 20, 2003

JOHN L. BIRCH, PLAINTIFF,
v.
JERRY JONES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Blanche M. Manning, United States District Judge

MEMORANDUM OPINION AND ORDER

The plaintiff, a state prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff claims that the defendants, officials at the Stateville Correctional Center, violated the plaintiffs constitutional rights by acting with deliberate indifference to his safety. More specifically, the plaintiff alleges that he was forced to share his cell, over his repeated protests, with a dangerous and belligerent inmate and that the cellmate soon attacked him. This matter is before the court for consideration of pending motions.

The defendant Page has filed a motion to dismiss the complaint for failure to state a claim. for the reasons stated in this order, the motion will be denied. It is welt established that pro se complaints are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972), reh'g denied, 405 U.S. 948 (1372); see also McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000). They can be dismissed for failure to state a claim only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Haines, 404 U.S. at 521; Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000).

When considering whether to dismiss a complaint for failure to state a claim upon which relief can be granted, the court takes the allegations in the complaint as true, viewing all facts — as well as any inferences reasonably drawn therefrom — in the light most favorable to the plaintiff. Autry v. Northwest Premium Services, Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). Dismissal should be denied whenever it appears that a basis for federal jurisdiction in fact exists or may exist and can be stated by the plaintiff. Jones v. Edgar, 3 F. Supp.2d 979, 980 (C.D. Ill. 1998).

FACTS

The complaint alleges the following facts, which will be accepted as true for purposes of the motion to dismiss: The plaintiff is a state prisoner, confined at the Stateville Correctional Center at all times relevant to this action. The defendant James Page was Stateville's warden at the time of the events giving rise to the complaint. The defendant Jerry Jones was the supervisor of the prison's placement office.

On or about October 26, 1999, the defendant Jones placed another inmate (Ivy) in the plaintiffs cell. The plaintiff is Caucasian; Ivy is a militant black Muslim who has expressed a deep hatred of white people. ivy also has a history of mental illness. Although the plaintiff had gone almost a year up to that date without being disciplined, his cellmate arrived from the segregation unit after serving time for committing violence against other prisoners. The plaintiff and ivy also apparently had different security classifications (the complaint is unclear on that point).

The plaintiff repeatedly complained to his counselor and two correctional officers that a cell change was needed. Those staffers (who are not named as defendants) threatened the plaintiff with disciplinary segregation and loss of privileges if he refused to accept his cell assignment and cellmate.

Several days later, on or about November 2, 1999, Ivy attacked the plaintiff. The plaintiff suffered serious injuries, including a broken nose and broken teeth. He was also wrongfully disciplined for fighting with Ivy. [The disciplinary charges were eventually expunged, according to documents attached to the complaint.]

In response to the motion to dismiss, the plaintiff additionally asserts that the officers of whom he requested a cell change contacted the defendant Jones, the placement supervisor, for approval but that Jones turned down the plaintiffs requests. (Plaintiffs brief at p. 2.) The plaintiff also maintains that the defendants Page and Jones had established an unwritten policy barring cell changes unless made in connection with disciplinary segregation. (Id.) The plaintiff further contends that there was a de facto rule that "in order to get a cell change, staff would have to see blood first." (Id. at p. 3.)

DISCUSSION

Accepting the factual allegations in the plaintiffs complaint and brief opposing dismissal as true, the court finds that the plaintiff has articulated a colorable cause of action against the defendants under the Civil Rights Act. "A plaintiff need not put all of the essential facts in the complaint. He may add them by affidavit or brief in order to defeat a motion to dismiss if these facts are consistent with the allegations in the complaint." Hentosh v. Herman M. Finch University, 167 F.3d 1170, 1173 n. 3 (7th Cir. 1999), quoting Hrubec v. National R. R. Passenger Corp., 981 F.2d 962, 963-64 (7th Cir. 1992). The plaintiff claims that there was no effort to ensure his compatibility with his cellmate; that officials knew, in fact, of the strong likelihood of conflict between the plaintiff Ivy; and that there was a policy effectively prohibiting cell changes until after an attack occurred. Under the circumstances described by the plaintiff, his assault is actionable under 42 U.S.C. § 1983.

The Eighth Amendment imposes a duty on prison officials to take reasonable steps to protect prisoners from attacks by other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994). However, not every inmate-on-inmate attack one inmate raises the specter of a constitutional violation. Luttrell v. Nickel, 129 F.3d 933, 935 (7th Cir. 1997). "Rather, an Eighth Amendment violation exists only if `deliberate indifference by prison officials effectively condones the attack by allowing it to happen.'" Langston v. Peters, 100 F.3d 1235, 1237 (7th Cir. 1996) (citation omitted).

"Deliberate indifference" means recklessness in a criminal, subjective sense; that is, disregarding a risk of danger so substantial that knowledge of the danger can be inferred. James v. Milwaukee County, 956 F.2d 696, 700 (7th Cir.), cert. denied, 506 U.S. 818 (1992). "Such disregard is tantamount to intending that the injury occur." Id. Any act with a state of mind less than intent or criminal recklessness, such as negligence or gross negligence, does not amount to punishment. Salazar v. ...


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