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Franklin Elmore v. James Morton

February 8, 2012

FRANKLIN ELMORE, PLAINTIFFS,
v.
JAMES MORTON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sue E. Myerscough United States District Judge

E-FILED

Wednesday, 08 February, 2012 02:52:09 PM

Clerk, U.S. District Court, ILCD

OPINION SUE E. MYERSCOUGH, U.S. District Judge:

Plaintiff, proceeding pro se and currently detained in the Rushville Treatment and Detention Center, seeks leave to proceed in forma pauperis on his claims arising from an assault by another resident and subsequent events.

The "privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who, within the District Court's sound discretion, would remain without legal remedy if such privilege were not afforded to them." Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). Additionally, a court must dismiss cases proceeding in forma pauperis "at any time" if the action is frivolous, malicious, or fails to state a claim, even if part of the filing fee has been paid. 28 U.S.C. § 1915(d)(2). Accordingly, this Court grants leave to proceed in forma pauperis only if the complaint states a federal claim. A hearing was scheduled to assist in this review, but the hearing will be cancelled as unnecessary.

LEGAL STANDARD

To state a claim, the allegations must set forth a "short and plain statement of the claim showing that the pleader is entitled to relief ." Fed. R. Civ. P. 8(a)(2). Factual allegations must give enough detail to give "'fair notice of what the . . . claim is and the grounds upon which it rests.'" EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(add'l citation omitted). The factual "allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" Id., quoting Bell Atlantic, 550 U.S. at 555. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged . . . . Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic, 550 U.S. at 555-56. However, pro se pleadings are liberally construed when applying this standard. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).

ALLEGATIONS

In September, 2011, resident Robert Smith allegedly called Plaintiff a racial slur and threatened to cause serious bodily harm to Plaintiff. Plaintiff informed the guard on duty, Defendant Morton, but Morton told Plaintiff he would have to deal with the situation on his own and that Morton would "not go against his own kind." (Complaint, p. 6). Plaintiff appealed to another guard who was present, Defendant Anderson, to no avail. When Plaintiff returned to his unit, resident Smith allegedly brutally beat Plaintiff for ten to fifteen minutes while Defendants Morton and Anderson watched.

After this incident, Plaintiff was put in segregation and charged with fighting, at the direction of Defendants Durant and Parker. He was not allowed out of his cell while in segregation and had only a bed, bed sheets, a toilet, sink, and desk in segregation, with no personal hygiene items. He was not allowed to take a shower while in segregation.

Plaintiff asked that witnesses be called and video footage of the incident be viewed at his disciplinary hearing, but the Behavioral Committee (Defendants Caraway, Haage, and Wilczynski) denied these requests, instead relying solely on the guards' incident reports. Plaintiff was found guilty and punished with 15 days of "close management status" and a change in grade level. Plaintiff filed a grievance about these events, which Defendant Simpson allegedly failed to properly investigate and answer.

ANALYSIS

Plaintiff states a failure-to-protect claim against Defendants Morton and Anderson. His allegations allow a plausible inference that Morton and Anderson were personally aware of a substantial risk of serious harm to Plaintiff from resident Smith, but failed to take any action and watched passively as the attack occurred. See Brown v. Budz, 398 F.3d 904, 910 (7th Cir. 2005)(applying Eighth Amendment standard to failure-to-protect claim by person detained under Sexually Violent Act). A plausible ...


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