The opinion of the court was delivered by: Murphy, District Judge:
Plaintiff Calvin Thomas's 42 U.S.C. § 1983 suit, alleging
unconstitutional conditions of confinement at Vienna Correction Center
in violation of the Eighth Amendment, was transferred from the Central
District of Illinois to this Court on February 16, 2012 (Doc. 8). Now
before the Court are Mr. Thomas's pending motions for leave to proceed
in forma pauperis ("IFP") (Doc. 3) and for appointment of counsel
(Doc. 4). Mr. Thomas filed his complaint on January 17, 2012--after
his release from Vienna Correction Center (Doc. 1).*fn1
As such, Mr. Thomas does not meet the statutory definition of
a "prisoner" under 28 U.S.C. 1915(h).*fn2 His motion
for IFP is governed by
28 U.S.C. § 1915(a)(1), which states that a federal district court
may allow a civil case to proceed
without prepayment of fees, if the movant "submits an affidavit that
includes a statement of all assets [he] possesses [showing] that [he]
is unable to pay such fees or give security therefor." Mr. Thomas
provided such a financial affidavit with his application for IFP.
However, 28 U.S.C. § 1915(e)(2) directs the Court to dismiss a case if
at any time the Court determines that the action is clearly frivolous
or malicious, fails to state a claim on which relief may be granted,
or is a claim for money damages against an immune defendant. The Court
has reviewed Mr. Thomas's complaint and finds that dismissal is
warranted in this case under 28 U.S.C. § 1915(e)(2) .
"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949 (2009), quoting Bell Atlantic Corp. V. Twombly, 550 U.S. 544, 570 (2007). Plausibility "asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility." Iqbal, 129 S.Ct. at 1949. While "[s]pecific facts are not necessary," the pleaded facts must "give the defendant fair notice of what the.claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Seventh Circuit has succinctly elucidated post-Twombly pleading standards:
So, what do we take away from Twombly, Erickson, and Iqbal? First, a plaintiff must provide notice to defendants of her claims. Second, courts must accept a plaintiff's factual allegations as true, but some factual allegations will be so sketchy or implausible that they fail to provide sufficient notice to defendants of the plaintiff's claim. Third, in considering the plaintiff's factual allegations, courts should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements.
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). "[T]he plaintiff must give enough details about the subject-matter of the case to present a story that holds together. In other words, the court will ask itself could these things have happened" Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (emphasis in original). Pro se complaints, such as Mr. Thomas's, are liberally construed and held to a less stringent standard than formal pleadings drafted by lawyers. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). However the complaint must still "actually suggest that the plaintiff has a right to relief." Windy City Metal Fabricators & Supply, Inc. v. CIT Technology Financing Services, Inc., 536 F.3d 663, 668 (7th Cir. 2008), citing Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (emphasis in original).
Mr. Thomas's complaint fails to meet that standard. He claims that while incarcerated at Vienna Correctional Center, his unit was infested with cockroaches and mice. He recounts that a cellmate's property box contained mouse droppings and property that had obviously been chewed by mice. He also complains of a leaky ceiling in the bathroom and window frames on the unit slanting or "falling apart," creating a "security [and] safety" hazard. Mr. Thomas alleges that at some time he had placed a sheet over a missing window-pane to prevent rain from entering his cell, and that "either the Warden or Assistant Warden" told Mr. Thomas to remove the sheet during a walk-through.
Mr. Thomas's allegations fail to approximate a plausible claim for unconstitutional confinement. His use of the word "infestation" alone cannot support a claim to relief here. While complaints of pest infestations have been found to state claims in other cases, a successful complaint of pest infestation can be distinguished by an allegation of "significant physical harm" arising from the pests. Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th Cir. 1996); see also Sain v. Wood, 512 F.3d 886, 894 (7th Cir. 2008)(finding that plaintiff was unable to show sufficiently serious unconstitutional conditions of confinement where several cockroaches were in plaintiff's cell, including cockroaches that bit him).*fn3 Mr. Thomas on the other hand, alleges no harm. Neither does Mr. Thomas specify what relief he seeks. While it is plausible that the occurrences alleged actually occurred, they definitively do not suggest any constitutional violation nor any right to relief.
Mr. Thomas's complaint further fails under 28 U.S.C. § 1915(e)(2) as his named Defendants, the State of Illinois and the Illinois Department of Corrections, are both immune from suit under the Eleventh Amendment. See Johnson v. Supreme Court of Illinois, 165 F.3d 1140, 1141 (7th Cir. 1999) ("states and their agencies are not 'persons' subject to suit under 42 U.S.C. § 1983."). Even were the warden or assistant warden substituted as defendants, the claims against them would be legally frivolous. See Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir. 2007). Telling an inmate to remove a sheet from a window frame is not deliberate indifference entitling Plaintiff to relief under the Eighth Amendment. And, again, Mr. Thomas claims no damage or injury. The Court cannot discern what Mr. Thomas seeks (particularly as Mr. Thomas is no longer incarcerated).
As Mr. Thomas fails to state a claim on which relief may be granted and names only defendants who are immune from this suit, his case shall be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). His motion to proceed IFP shall be DENIED and his other pending motion deemed MOOT.
G. PATRICK MURPHY United States ...