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Mister v. Collins

September 29, 2008

SHARVELT MISTER, PLAINTIFF,
v.
T. J. COLLINS, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate at the Menard Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff seeks declaratory and monetary relief for allegedly failing to protect him from an attack and for allegedly failing to provide him adequate medical care for injuries he suffered as a result of the attack. This case is now before the Court for a preliminary review of Plaintiff's amended complaint*fn1 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 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). 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. Twombly, 127 S.Ct. 1955, 1974 (2007).

Also before the Court is Plaintiff's motion for a status report (Doc. 10) and his motion for appointment of counsel (Doc. 11).

THE AMENDED COMPLAINT

Briefly, Plaintiff alleges that while he was a pretrial detainee at the St. Clair County Jail (Jail) he was attacked by three other prisoners. Plaintiff claims that these prisoners attacked him in retaliation for Plaintiff laughing at C.O. Lemansky. Prior to the attack, Plaintiff asserts that he had written to Defendants Collins and Ripiden that he feared for his safety because Defendant Lemansky had told Plaintiff that "oh you're laughing, that's okay you aren't going to live long bitch." Liberally construing the complaint, Plaintiff alleges that Defendant Lemansky had a friendly relationship with inmate Young, that Young had been sent to the maximum segregation after attacking Plaintiff, and that Young was housed in the maximum segregation unit with the three inmates who ultimately attacked Plaintiff. Plaintiff asserts that Defendants Lemansky, Collins, and Ripiden failed to protect him from the attacks and/or actively plotted with the three inmates to carry out the attacks as retaliation for laughing at Lemansky.

As a result of the attack, Plaintiff claims that he suffered serious physical injuries. Plaintiff claims that Defendants Collins, Ampadu, Cole, Rodriguez, and Ruddlittle failed to provide him with adequate medical care for these injuries. Additionally, Plaintiff claims that Defendant Ruddlittle destroyed his request for medical treatment.

DISCUSSION

At the outset, the Court notes that an amended complaint replaces the original complaint thereby rendering the original complaint void. See Flannery v. Recording Indus. Assoc. Of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004); Fuhrer v. Fuhrer, 292 F.2d 140, 144 (7th Cir. 1961). After a review of the allegations in the amended complaint, the Court is unable to dismiss any claim at this time.

With respect to Plaintiff's motion to appoint him counsel, there is no absolute right to appointment of counsel in a civil case. Cook v. Bounds, 518 F.2d 779 (4th Cir. 1975); Peterson v. Nadler, 452 F.2d 754 (8th Cir. 1971). When presented with a request to appoint counsel, the Court must make the following inquiries: "(1) has the ... plaintiff made a reasonable attempt to obtain counsel or effectively been precluded from doing so and (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself." Pruitt v. Mote, 503 F.3d647, 854-55 (7th Cir. 2007). With ...


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