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Pettigrew v. McCann

December 5, 2005

CAREY PETTIGREW, INMATE #R26024, PLAINTIFF,
v.
TERRY MCCANN, MELODY J. FORD, TERRIAN ARMSTRONG, ROGER E. WALKER, JR., OFFICER GRISSOM, SERGEANT ODOM, LT. MCGILL, OFFICER DAVIS, AND NURSE TERRY, DEFENDANTS.



The opinion of the court was delivered by: Foreman, District Judge

MEMORANDUM AND ORDER

Plaintiff, an inmate in the Menard Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. On March 9, 2005, the Court granted Plaintiff's motion to proceed in forma pauperis and assessed an initial partial filing fee. After Plaintiff failed to pay the initial partial filing fee, the Court ordered the Plaintiff to pay it or show cause why he was unable to do so. Plaintiff responded by stating that he had was completely without funds and unable to pay the fee. The Court construes this response as a request to waive the initial partial filing fee. Plaintiff's request is granted and Plaintiff is allowed to proceed without payment of an initial fee.

This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides, in pertinent part:

(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). After evaluating plaintiff's claims individually, the Court finds it appropriate to exercise its authority under Section 1915A to dismiss those claims that are frivolous before allowing plaintiff to proceed with his remaining claims. See also House v. Belford, 956 F.2d 711, 718-19 (7th Cir. 1992).

Plaintiff states that while he was an inmate in the Shawnee Correctional Center, he was housed with an inmate with whom he fought regularly. Plaintiff states that he notified Defendant Davis of the arguments, but that Davis "blew it off" and left him in the cell with his "known enemy." Plaintiff states that three weeks after he notified Davis, he got into a fight with his cellmate and the cellmate attacked and choked him, causing bite marks, bruises, and abrasions on his face, chest, and back. Plaintiff stabbed his cellmate with a pen in self-defense, leading to his being disciplined and transferred. Plaintiff further states that Defendant Ford took over eleven months to respond to his grievance.

FAILURE TO PROTECT

In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court held that "prison officials have a duty ... to protect prisoners from violence at the hands of other prisoners."

Id. at 833 (internal citations omitted); see also Luttrell v. Nickel, 129 F.3d 933, 935 (7th Cir. 1997). However, not every harm caused by another inmate translates into constitutional liability for the corrections officers responsible for the prisoner's safety. Farmer, 511 U.S. at 834. In order for a plaintiff to succeed on a claim for failure to protect, he must show that he is incarcerated under conditions posing a substantial risk of serious harm, and that the defendants acted with "deliberate indifference" to that§ danger. Id.; Reed v. McBride, 178 F.3d 849, 852 (7th Cir. 1999). A plaintiff also must prove that prison officials were aware of a specific, impending, and substantial threat to his safety, often by showing that he complained to prison officials about a specific threat to his safety. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996). In other words, Defendants had to know that there was a substantial risk that those who attacked Plaintiff would do so, yet failed to take any action. Sanville v. McCaughtry, 266 F.3d 724, 733-34 (7th Cir. 2001).

Plaintiff states that he told Defendant Davis about the problems with his cellmate, but Davis did nothing about it. Based on these allegations and the standards noted above, this claim cannot be dismissed at ...


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