The opinion of the court was delivered by: Gilbert, District Judge
Before the Court is Plaintiff Martin Munoz's motion to proceed in forma pauperis (Doc. 2). Munoz is committed to the Chester Mental Health Center ("CMHC"), and it appears that he is not a "prisoner" as defined in 28 U.S.C. § 1915(h). Therefore, the prisoner provisions of §§ 1915(a)(2), (b)(1) and (b)(2) do not apply. Upon review of his affidavit, the Court concludes that Munoz is unable to pay any portion of the filing fee. Accordingly, his motion to proceed in forma pauperis is GRANTED.
Munoz also requests that the Court appoint him 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 that Munoz has attempted to obtain counsel or been effectively precluded from doing so. Therefore, his motion for the appointment of counsel is DENIED, without prejudice.
In this action, Munoz alleges that on August 10, 2008, he was physically assaulted by four staff members at CMHC, including Defendants Adam and Matt. He further alleges that Defendant Kelley is aware that staff members assault patients, but that she does nothing to curtail their behavior.
The intentional use of excessive force by prison guards against an inmate without penological justification constitutes cruel and unusual punishment in violation of the Eighth Amendment and is actionable under Section 1983. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). "[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 6-7. Accordingly, the Court is unable to dismiss this claim against Adam and Matt at this time. See 28 U.S.C. § 1915(e)(2). As for Kelley,
[t]he doctrine of respondeat superior does not apply to § 1983 actions; thus to be held individually liable, a defendant must be "personally responsible for the deprivation of a constitutional right." Chavez, 251 F.3d at 651 (quotation omitted); see also Wolf-Lillie, 699 F.2d at 869 ("Section 1983 creates a cause of action based upon personal liability and predicated upon fault."). A defendant "will be deemed to have sufficient personal responsibility if he directed the conduct causing the constitutional violation, or if it occurred with his knowledge or consent." Chavez, 251 F.3d at 652. This definition recognizes that the individual does not have to have participated directly in the deprivation. See McPhaul v. Board of Comm'rs of Madison Co., 226 F.3d 558, 566 (7th Cir. 2000) (quotation omitted).
Thus, a supervisor may be liable for "deliberate, reckless indifference" to the misconduct of subordinates. See Chavez, 251 F.3d at 651. ("The supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see.")
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Construing the complaint liberally, the Court is unable to dismiss the claim against Kelley at this time.
Munoz also names the CMHC as a defendant. However, governmental entities cannot be held liable for the unconstitutional acts of their employees unless those acts were carried out pursuant to an official custom or policy. Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 765 (7th Cir. 2006). See also Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). "The 'official policy' requirement for liability under § 1983 is to 'distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.' " Estate of Sims ex rel. Sims v. County of Bureau, 506 F.3d 509, 515 (7th Cir. 2007) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). See also Lewis v. City of Chicago, 496 F.3d 645, 656 (7th Cir. 2007) ("Misbehaving employees are responsible for their own conduct, 'units of local government are responsible only for their policies rather than misconduct by their workers.' "(quoting Fairley v. Fermaint, 482 F.3d 897, 904 (7th Cir. 2007))).
Munoz makes no allegation that Kelley, Adam or Matt acted pursuant to an official custom or policy of CMHC. Thus, he has failed to state a claim against CMHC.
IT IS HEREBY ORDERED that Defendant CHESTER MENTAL HEALTH CENTER is DISMISSED from this action with prejudice.
IT IS FURTHER ORDERED that Plaintiff shall complete and submit a USM-285 form for Defendants KELLEY, ADAM and MATT within THIRTY (30) DAYS of the date of entry of this Memorandum and Order. The Clerk is DIRECTED to send Plaintiff THREE (3) USM-285 forms with Plaintiff's copy of this Memorandum and Order. Plaintiff is advised that service will not be made ...