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Matthew M.L. Mccain, # R21553 v. Michael P. Atcherson

April 2, 2013

MATTHEW M.L. MCCAIN, # R21553, PLAINTIFF,
v.
MICHAEL P. ATCHERSON, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, who is currently incarcerated at Menard Correctional Center ("Menard"), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving a 35-year sentence for murder. His claims arose during his incarceration at Menard. Plaintiff claims that the nineteen defendants violated his constitutional rights under the Fourth, Eighth, and Fourteenth Amendments by repeatedly failing to protect him from other inmates and confiscating his personal property (Doc. 1). Plaintiff seeks compensatory and punitive damages (Doc. 1, p. 19). He also seeks a temporary restraining order ("TRO") and preliminary injunction to protect him from future harm (Doc. 2).

Specifically, Plaintiff alleges that he is a former member of the Latin Kings gang (Doc. 1, p. 4). In 2005, Plaintiff was "irradicated"*fn1 from the gang after the Latin Kings identified him as being homosexual. Until his transfer to Menard, Plaintiff successfully avoided contact with gang members. Soon after his transfer, Plaintiff ran into a known Latin King gang leader, who recognized Plaintiff and divulged his former affiliation to other inmate gang members (Doc. 1, pp. 4, 6). Plaintiff's fellow inmates now view him as a traitor, an informant, and a homosexual (Doc. 1, p. 4). Subsequent to this encounter, Plaintiff endured numerous unwanted sexual advances, indirect and direct threats of harm, and actual physical attacks by suspected gang members and their allies, including Plaintiff's own cellmates (Doc. 1, p. 5).

Plaintiff alleges that he is not safe at Menard. Since his transfer on November 15, 2012, Plaintiff has been attacked by inmates on four occasions, including November 21, 2012, January 4, 2013, January 15, 2013, and March 8, 2013 (Doc. 1, p. 6). In each attack, the perpetrator was a cellmate. In two incidents, Plaintiff was in protective custody.

On November 21, 2012, a cellmate attacked Plaintiff, by choking him and ripping his clothing (Doc. 1, pp. 7-8). Prison officials did not intervene or assist Plaintiff. They failed to issue an incident report and left Plaintiff in the cell with the perpetrator after the attack. Plaintiff was placed in protective custody the same day. He asked to stay there. His request was ultimately denied, and Plaintiff was transferred out of protective custody (Doc. 1, p. 9).

On January 4 and 15, 2013, Plaintiff was again assaulted, this time by a different cellmate (Doc. 1, pp. 9-10). The cellmate tried to take Plaintiff's commissary and then attacked him twice, cutting Plaintiff's left temple and scarring the left side of his forehead. According to Plaintiff, Defendants did nothing to prevent the attack or assist him. Plaintiff's subsequent grievances, including emergency grievances requesting long-term placement in protective custody, were ignored or denied (Doc. 1, p. 11).

On March 8, 2013, as Plaintiff was preparing to file this lawsuit, a cellmate stabbed him in the chest with a pencil and busted his lip during an attack (Doc. 1, p. 13). In response, Plaintiff was placed in investigatory segregation, where he remained on the date he filed this lawsuit (Doc. 1, p. 14). Plaintiff claims that he was denied adequate medical treatment for the stab wound when he was provided with antibiotic ointment and a band-aid.

As to each defendant, Plaintiff makes the following allegations in his complaint:

1. Defendant Herrington: Plaintiff alleges that he complained of gang threats and sexual advances directly to this defendant, who took no action. Plaintiff also sent this defendant an emergency grievance requesting long-term placement in protective custody, along with supporting documentation. Defendant Herrington denied Plaintiff's request for protective custody (Doc. 1, pp. 6, 12);

2. Defendant Cowan: Plaintiff alleges that he repeatedly complained of gang threats and sexual advances directly to this defendant, both verbally and in writing. Defendant Cowan interviewed Plaintiff regarding his request for protective custody in the gallery, within earshot of the inmates Plaintiff was seeking to avoid. Defendant Cowan took no meaningful action, and Plaintiff continued to get attacked (Doc. 1, pp. 5, 8, 12);

3. Defendant Laurance: Plaintiff alleges that he complained of gang threats and sexual advances directly to this defendant, who took no meaningful action. Plaintiff sent Defendant Laurance a letter explaining his safety concerns in detail. Defendant Laurance admitted receiving grievances from Plaintiff, but did nothing to help Plaintiff secure placement in protective custody (Doc. 1, pp. 5, 12);

4. Defendant Godinez: Plaintiff alleges that he denied Plaintiff's request for placement in protective custody, left Plaintiff in the cell with his perpetrator after Plaintiff reported the assault by his cellmate, failed to investigate the attack(s), and offered no help to Plaintiff (Doc. 1, p. 11);

5. Defendant Anderson: Plaintiff alleges that he told this defendant "everything," reporting the details of the assaults and the events leading up to them. Defendant Anderson nevertheless denied his request for protective custody (Doc. 1, pp. 6, 11);

6. Defendant Dunn: Plaintiff asked this defendant for protective custody. He submitted a specific written request to be separated from one of his perpetrators before an attack, noting that the cellmate was getting "more and more belligerent." Defendant Dunn ignored the request, and Plaintiff was attacked (Doc. 1, pp. 6-7);

7. Defendant Joy and Unknown Party 2 (John Doe 1): Plaintiff claims Defendant Joy responded to Plaintiff's calls for help during an attack by telling him to "shut up" and "shut the f*** up." Both Defendants then refused to acknowledge Plaintiff's complaints regarding the assault. Defendant Unknown Party 2 (John Doe 1) told Plaintiff he did not care about the attack ...


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