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Colin v. McCann

April 21, 2009

ABEL COLIN (K-82453), PLAINTIFF,
v.
TERRY MCCANN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Amy J. St. Eve

MEMORANDUM OPINION AND ORDER

Plaintiff, Abel Colin (K-82453), an Illinois prisoner incarcerated at Stateville Correctional Center, filed a 42 U.S.C. § 1983 action against Terry McCann (former Stateville warden), Jerry Baldwin (counselor in the X house at Stateville), Officer Tejada (Internal Affairs Officer at Stateville), Eddie Jones (former warden of Pontiac Correctional Center), and Marvin Reed (an assistant warden at Pontiac). Plaintiff alleges that the Defendants are acting with deliberate indifference to Plaintiff's safety by not placing him in protective custody at Stateville. The Defendants have filed a motion to dismiss the complaint. Plaintiff has filed a response. For the following reasons, the Court denies the motion to dismiss, but dismisses Eddie Jones and Marvin Reed as Defendants. Plaintiff may proceed with his claim that McCann, Baldwin, and Tejada continue not to protect Plaintiff by refusing to house him in protective custody. On its own motion, the Court appoints counsel for Plaintiff.

STANDARD OF REVIEW

When considering a motion to dismiss, this Court assumes to be true all well-pleaded allegations and views the alleged facts, as well as any inferences reasonably drawn therefrom, in a light most favorable to the plaintiff. Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007); Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits, or determine a plaintiff's ability to succeed on his claims. Weiler v. Household Finance Corp., 101 F.3d 519, 524 n.1 (7th Cir. 1996).

Under the notice pleading requirement of Fed. R. Civ. P. 8(a), a complaint must provide sufficient notice of the claim. The complaint need not state extensive facts, and the complaint need only state enough information to provide the defendant with notice of the claim and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the allegations of a complaint must "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 -77 (7th Cir. 2007). The complaint must do more than recite the elements of a cause of action, and a court need not accept mere labels and legal conclusions as factual allegations. Bell Atlantic, 550 U.S. at 555. Nor must a court presume facts not alleged. Id. Also, if the plaintiff pleads facts demonstrating that he has no claim, he may plead himself out of court. McCready v. eBay, Inc, 453 F.3d 882, 888 (7th Cir. 2006).

FACTS

Plaintiff alleges in his complaint that he is in imminent danger of harm from members of enemy gangs, the Latin Kings and the Vice Lords. (Complaint at 4.) He alleges that the Defendants know that Plaintiff faces harm in general population, but refuse to place him in protective custody. He further alleges that the Defendants are violating the consent decree in Meeks v. Lane, No. 75-C-96 (N.D. Ill. July 1981) ("the Meeks decree") by allowing general population inmates access to prisoners in protective custody when delivering either food trays or commissary items. (Id. at 4-5.)

Attached to the complaint are three letters. The first letter, dated September 8, 2008, is from an attorney representing Plaintiff in his state post-conviction proceedings and is addressed to Stateville Warden Terry McCann. The attorney stated that Plaintiff was convicted of sexual assault of a child, Plaintiff was threatened numerous times, he is 56 years old, he is of a slight stature, and he fears for his safety. The attorney requested that McCann or a member of his staff place Plaintiff in protective custody. (R. 1 at 7, September 8, 2008, letter attached to Complaint.) The second letter is dated August 24, 2008, and is from Plaintiff to the Administrative Review Board in Springfield, Illinois. Plaintiff stated that a review panel at Stateville denied his request to be placed in protective custody that he was convicted of sexual assault of a child, that he had been in protective custody at Pontiac from 2000 to 2007, and that during the conviction process from 1995-2000, he was beaten, harassed, forced to pay money to and forced to wash clothes for both Latin King and Vice Lord gang members. (R. 1 at 8-9, August 24, 2008, letter attached to Complaint.) The third letter is dated March 4, 2008, from Plaintiff's attorney to Eddie Jones, Warden of Pontiac. Similar to the other letters, Plaintiff's attorney requested that Plaintiff be able to remain in protective custody. (R. 1 at 13-14, March 4, 2008, letter.)

In response to Defendants' motion to dismiss, Plaintiff states that he still fears assault in general population and that the Defendants continue to deny him protective custody. (R. 22, Plaintiff's Response, 5.) He reiterates that he was convicted of sexual assault of a child, that inmates in general population intentionally lose his commissary request slips, threaten to poison his food, and threaten to beat him if he does not pay extortion fees. (R. 21, Plaintiff's Affidavit.)

The Defendants contend that Plaintiff (1) does not state how the Defendants were or are personally involved, and (2) does not state a physical injury to support a civil rights claim under 42 U.S.C. § 1997e. (R. 16, Defs' Motion to Dismiss.)

ANALYSIS

A. Failure to Protect Standard

To state a failure to protect claim, a plaintiff must allege that he faced a serious risk of harm and that the defendants knew of yet disregarded that risk. Christopher v. Buss, 384 F.3d 879, 881 (7th Cir. 2004) (citing Hudson v. McMillian, 503 U.S. 1, 5 (1992); Farmer v. Brennan, 511 U.S. 825, 832 (1994)). The risk-of-harm prong is an objective one, and the plaintiff must be able to show that he was exposed to a substantial risk of serious harm. A beating by a fellow detainee constitutes a serious harm. Brown v. Budz, 398 F3d 904, 910-11 (7th Cir. 2005). The deliberate-indifference prong is subjective, and the prisoner must ...


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