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Andre M. Kelly, #N-23078 v. C Knop

May 21, 2012

ANDRE M. KELLY, #N-23078, PLAINTIFF,
v.
C KNOP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gilbert, District Judge:

MEMORANDUM AND ORDER

Plaintiff Andre Kelly brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on incidents that occurred while he was housed at Lawrence Correctional Center ("Lawrence") in Sumner, Illinois. Plaintiff is currently on parole and living in a halfway house in Chicago, Illinois. 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, 550 U.S. 544, 570 (2007). Conversely, a complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

Upon careful review of the complaint and supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal. Factual Summary

Plaintiff alleges that on April 30, 2011, Defendant C/O C. Knop placed him on 3A upper wing with inmate Harris, #R22278, as his cell mate, despite the fact that Plaintiff had a medical permit for low deck and low bunk. Although inmate Harris also had a low bunk permit, Defendant Knop told inmate Harris to "get the fuck on the top bunk," effectively placing Plaintiff on the lower bunk (Doc. 1, p. 5). Plaintiff claims that Defendant Knop knew that both he and inmate Harris had low bunk medical permits. According to the complaint, inmate Harris became violent and threatening toward Plaintiff from that day on.

On May 7, 2011, at 4:30 a.m., inmate Harris told Plaintiff that he was in Harris's bunk, and that Harris was going to kill himself or someone else. Plaintiff pushed the emergency button in the cell several times, but no one ever responded. When Plaintiff got into his bunk, inmate Harris jumped down from the upper bunk, began punching Plaintiff in the face repeatedly, knocking Plaintiff's front tooth out, splitting Plaintiff's gums, and knocking Plaintiff to the floor. After attacking Plaintiff, inmate Harris yelled for a correctional officer to come to the cell. Defendant C/O Kessler responded, but when Plaintiff told him what happened, he refused to provide medical attention for Plaintiff as requested.

The next day, Plaintiff stopped a nurse walking by his cell to tell her what had happened. She advised Plaintiff to fill out a nurse sick call slip, which he did, twice. At an undisclosed time, Plaintiff showed his injuries to Defendant Lieutenant Dickerson, who replied that he had not been apprised of the May 7, 2011, incident. Plaintiff then told Defendant Dickerson what had happened. According to the complaint, Defendant Dickerson then tested Plaintiff's emergency button, which worked at that time, but no one responded. Defendant Dickerson told Plaintiff that he would get him medical attention and send the prison dentist.

Plaintiff filed three emergency grievances over the incident, two of which are attached to the complaint (Doc. 1, pp. 10-13). It is not clear from the complaint whether these grievances were responded to. Plaintiff is requesting maximum compensatory and punitive damages. Discussion

Based on the allegations of the complaint, the Court finds it convenient to divide the pro se action into three (3) numbered counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of the Court. The designation of these counts in no way constitutes an opinion as to each count's merit.

Count 1 - Failure to Protect from Inmate Assault

In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court held that "prison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners." Id. at 833 (internal citations omitted); see also Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). However, not every harm caused by another inmate translates into constitutional liability for the corrections officers responsible for the prisoner's safety. Farmer, 511 U.S. at 834. In order for a plaintiff to succeed on a failure to protect claim, he must show he was incarcerated under conditions posing a substantial risk of serious harm, and the defendants acted with "deliberate indifference" to that danger. Id.; Pinkston, 440 F.3d at 889. A plaintiff also must prove prison officials were aware of a specific, impending and substantial threat to his safety, often by showing that he complained to prison officials about a specific threat to his safety. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996).

When a plaintiff has been attacked by another inmate, if he is to succeed on a failure to protect claim, he must show the defendants knew there was a substantial risk that those who attacked plaintiff would do so, yet failed to take any action. See Sanville v. McCaughtry, 266 F.3d 724, 733-34 (7th Cir. 2001). However, conduct that amounts to negligence or inadvertence is not enough to state a claim. Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006) (discussing Watts v. Laurent, 774 F.2d 168, 172 (7th Cir. 1985)).

A prisoner's interest in safety does not lead to absolute liability, however, any more than the state is the insurer of medical care for prisoners . . . . [T]he eighth amendment has a mental component. The eighth amendment addresses only punishment. Whether an injury inflicted by fellow prisoners . . . is "punishment" depends on the mental state of those who cause or fail to prevent it. . . . Other mental states, including total indifference to risks, come so close to deliberateness that courts treat them alike. Thus judges speak . . . of "deliberate indifference" or "recklessness" as the functional equivalent of intent. Although there are ...


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