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Juan Diaz, M-01544 v. Childers

January 10, 2013

JUAN DIAZ, M-01544 PLAINTIFF,
v.
CHILDERS, K. FINNY, CLARK, EVANS, JACKSON, SCHULER AND, BIG MUDDY CORRECTIONAL CENTER, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, Juan Diaz, is currently incarcerated at Pontiac Correctional Center, ("Pontiac") and has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 for alleged constitutional violations that occurred at Big Muddy Correctional Center ("Big Muddy"). Plaintiff claims his Eighth Amendment rights were violated by correctional officers who forced him to fight his cellmates.

Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. The Court finds that Plaintiff has articulated a colorable federal claim for cruel and unusual punishment under the Eighth Amendment.

Plaintiff alleges that between February 24, 2012 and March 20, 2012, Defendants subjected Plaintiff to various indignities, and forced him to physically fight his cellmates by threats and encouragement. Defendants Childers, Clark, and Schuler are named in the caption and referenced in the pleadings as individuals who forced Plaintiff to fight with his cellmates.

The following five Big Muddy correctional officers allegedly contrived a plan for Plaintiff to fight with other inmates: Valdez, Arnez, Thornton, Dubis, and Davies. These five individuals are not named by Plaintiff in the caption of the case, but shall be added as parties. According to Plaintiff, Defendants coerced Plaintiff into fighting by threatening to murder Plaintiff's mother or force Plaintiff to join a gang. Harassment becomes actionable where it involves a "threat to kill, or to inflict any other physical injury." Dobbey v. Ill. Dep't of Corr., 574 F.3d 443, 446 (7th Cir. 2009). Allegations that a prison officer has provoked or persuaded other inmates to cause harm to a plaintiff support an inference that the officer attempted to inflict injury on the plaintiff in violation of the Eighth Amendment. See Irving v. Dormire, 519 F.3d 441, 449 (8th Cir. 2008) (officer's attempt to have other inmates attack plaintiff may violate Eighth Amendment, even where the plaintiff was not actually assaulted); Northington v. Jackson, 973 F.2d 1518, 1525 (10th Cir. 1992) (Eighth Amendment claim stated where guard "intended to do harm to [a prisoner] by inciting inmates to beat him[;]" guard told other inmates that plaintiff was a snitch).

Plaintiff is currently incarcerated at Pontiac Correctional Center so it is unclear to the Court when Plaintiff was transferred from Big Muddy to Pontiac. In any event, accepting Plaintiff's allegations as true, Plaintiff has articulated a colorable federal claim for cruel and unusual punishment under the Eighth Amendment. Plaintiff's claims against Defendants Childers, Clark, Schuler, Valdez, Arnez, Thornton, Dubis, and Davies shall receive further review.

Defendants Finny, Evans, Jackson, and Big Muddy Correctional Center are named in the caption of the case, but are not referenced anywhere in the pleadings. Merely invoking the name of a potential defendant is not sufficient to state a claim against that individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998) ("A plaintiff cannot state a claim against a defendant by including the defendant's name in the caption."). The Court is always mindful that it must give liberal construction to complaints, especially for plaintiffs proceeding pro se. "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). When a defendant is named in the caption, but not referenced within the body of the complaint, the defendant is not adequately put on notice of which claims in the complaint, if any, are directed against her. Accordingly, Defendants Finny, Evans, Jackson, and Big Muddy are DISMISSED with prejudice.

Pending Motions

Plaintiff's motion for appointment of counsel (Doc. 4) shall be referred to United States Magistrate Judge Wilkerson for further consideration.

Plaintiff's motion for post-conviction relief (Doc. 9) is DENIED without prejudice. This Court does not have jurisdiction to grant such relief. Plaintiff's post-conviction remedies lie in state court.

Disposition

Defendants FINNY, EVANS, JACKSON and BIG MUDDY CORRECTIONAL CENTER will be DISMISSED from this action with prejudice.

Correctional Officers VALDEZ, ARNEZ, THORNTON, DUBIN and DAVIES shall be ADDED as parties to this case and Plaintiff's claims against each of these Defendants shall receive further review. Plaintiff's claims against Defendants CHILDERS, CLARK, and SCHULER shall also receive further review.

The Clerk of Court shall prepare for Defendants VALDEZ, ARNEZ, THORNTON, DUBIN, DAVIES, CHILDERS, CLARK, and SCHULER : (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the complaint, and this Memorandum and Order to each Defendant's place of employment as identified by Plaintiff. If a Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to effect formal service on that ...


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