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Mascio v. Collins

October 16, 2008

DONALD MASCIO, PLAINTIFF,
v.
DONALD COLLINS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM AND ORDER

Plaintiff, an inmate at the Lawrence Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff seeks damages for violations of his Eighth Amendment rights. This case is now before the Court for a preliminary review of the complaint 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). Upon careful review of the complaint and the supporting exhibits, the Court finds that portions of the complaint should be dismissed pursuant to § 1915A.

THE COMPLAINT

Plaintiff alleges that on June 26, 2007, he was beaten and sexually assaulted by Donald Collins, a federal inmate, while confined at the Fayette County, Illinois, Jail. Plaintiff further alleges that Defendants "J.D." and "Joe" denied him adequate medical care for the injuries he sustained during the attack.

DISCUSSION

Plaintiff's claim that he was denied adequate medical care for his injuries by Defendants "J.D." and "Joe" (both of whom are alleged to be jail employees) in violation of the Eighth Amendment survives review under § 1915A and should not be dismissed at this time.

Plaintiff's claim against Defendant Collins, however, should be dismissed pursuant to § 1915A. Title 42 U.S.C. § 1983 imposes liability only on persons acting under "color of" state law. Defendant Collins is alleged to be a federal inmate, a private party, and not a state government official . It is axiomatic that Collins was not authorized or empowered by state law to beat Plaintiff. Therefore, Plaintiff's claim against Defendant Collins should be dismissed for failing to state a claim. The dismissal of Plaintiff's claim counts as a "strike" for purposes of 28 U.S.C. § 1915(g). See George v. Smith, 507 F.3d 605, 607-08 (7th Cir. 2007); Boriboune v. Berge, 391 F.3d 852, 855 (7th Cir. 2004).

Also before the Court is Plaintiff's motion for appointment of counsel (Doc. 3).. 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 regard to the first step of the inquiry, there is no indication at all whether Plaintiff has attempted to obtain counsel or been effectively precluded from doing so.

With regard to the second step of the inquiry,"the difficulty of the case is considered against the plaintiff's litigation capabilities, and those capabilities are examined in light of the challenges specific to the case at hand." Id. Plaintiff's claims are not that factually complex. From a legal standpoint, the litigation of any constitutional claim falls in the range of complex. Nevertheless, based on Plaintiff's pleadings in this case based on Plaintiff's representation of himself in other cases, See Mascio v. Redman, No. 3:07-cv-740 (S.D. Ill.); Mascio v. Priddy, No. 3:08-cv-107 (S.D. Ill.), this Court concludes that - at ...


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