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Schargorodsky v. Lind

United States District Court, Seventh Circuit

June 26, 2013

ANTHONY SCHARGORODSKY, # M-13605, Plaintiff,
v.
C/O LIND, C/O JAMES, LT. STRICKLA, and DR. SHAH, Defendants.

MEMORANDUM AND ORDER

G. PATRICK MURPHY, District Judge.

Plaintiff, currently incarcerated at Lawrence Correctional Center ("Lawrence"), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. His claims arose while he was confined at Pinckneyville Correctional Center ("Pinckneyville"). Plaintiff is serving a nine year sentence for criminal sexual assault. Plaintiff claims that Defendants Lind, James, and Strickla, correctional officers, failed to protect him from an attack by his cellmate despite his warnings that he was in danger. He then claims Defendant Shah failed to properly treat the injuries sustained in the assault.

More specifically, Plaintiff claims that on July 25 and August 2, 2011, he wrote to Defendant Lind (of Internal Affairs) stating he had received threats due to his conviction, and did not feel safe (Doc. 1, p. 5).[1] He also relayed his concerns to Defendant Strickla (housing Lieutenant) and other officers, who "blew [him] off." Id. Defendant Lind called Plaintiff to Internal Affairs for an interview, in which Plaintiff asked to be moved to another cell in a different housing unit because his cellmate (Moore) had threatened his life. Defendant Lind said that he needed a week to see what he could do because he was very busy. When Plaintiff said he did not have a week and needed an immediate move, Defendant Lind responded that he could "either walk [himself] to seg or fight, " and ordered Plaintiff to return to his cell (Doc. 1, p. 5).

On August 8, 2011, Plaintiff's cellmate Moore attacked him, hitting him repeatedly with a property box and stabbing Plaintiff's right hand with a shank. Defendants Lind and James (also of Internal Affairs) investigated the assault and documented Plaintiff's injuries. Plaintiff told them Moore had been trying to kill him. However, Defendants Lind and James refused to move Plaintiff to a different housing unit, and he still had daily contact with inmate Moore.

Defendant Shah (medical doctor) examined Plaintiff after the assault. The shank had penetrated Plaintiff's hand to the bone, but Defendant Shah told Plaintiff nothing was wrong with his hand. Plaintiff saw Defendant Shah "repeatedly" after the attack, but he refused to give Plaintiff any treatment (Doc. 1, p. 5). Plaintiff has "shooting pain" up his arm, loss of flexibility in two fingers, and his grip is very weak.

Plaintiff seeks damages and treatment for his medical issues (Doc. 1, p. 6).

Merits Review Pursuant to 28 U.S.C. § 1915A

Under § 1915A, the Court is required to conduct a prompt threshold review of the complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from an immune defendant.

Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable federal cause of action against Defendants Lind and Strickla for deliberate indifference to Plaintiff's safety and failure to protect him from assault by his cellmate (Count 1) and against Defendant Shah for deliberate indifference to a serious medical need (Count 2). However, Plaintiff's allegations against Defendant James fail to state a claim upon which relief may be granted, and he shall be dismissed from the action.

In order to state a claim for deliberate indifference to Plaintiff's safety in the face of a risk of attack from a fellow prisoner, the complaint must indicate that Plaintiff made the defendant prison official aware of the risk he faced, but the official acted, or failed to act, in disregard of that risk. Farmer v. Brennan, 511 U.S. 825, 833 (1994); see also Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). Plaintiff states that he alerted both Defendant Lind and Defendant Strickla to his safety concerns before he was attacked by inmate Moore. However, Defendant James's only involvement was to investigate the assault after the fact - thus, he had no advance warning to which he could have been deliberately indifferent. Although Plaintiff continued to be housed near Moore, no further attack occurred. And the complaint shows that Plaintiff is no longer incarcerated at Pinckneyville. Defendant James shall be dismissed with prejudice.

Plaintiff's prayer for treatment of his medical issues is a request for injunctive relief that cannot be addressed in this action. Plaintiff is now incarcerated at Lawrence, and would be under the medical care of staff at that facility. Neither Defendant Shah nor any other named Defendant (all of whom work at Pinckneyville) has any responsibility for Plaintiff's current medical needs. "[W]hen a prisoner who seeks injunctive relief for a condition specific to a particular prison is transferred out of that prison, the need for relief, and hence the prisoner's claim, become moot." Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir. 2004). See also Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1995). Only if Plaintiff can show a realistic possibility that he would again be incarcerated at Pinckneyville under the conditions described in the complaint, would it be proper for the Court to consider injunctive relief. See Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011) (citing Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir. 2009)). If Plaintiff's current medical needs are not being met at Lawrence, that problem would be the subject of another claim against other defendant(s).

Pending Motion

Plaintiff's motion for recruitment of counsel (Doc. 3) shall be referred to United States Magistrate Judge Wilkerson for further consideration. The motion for service of process at government expense (Doc. 4) is GRANTED IN PART AND DENIED IN PART. Service shall be ordered below for the Defendants who ...


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