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Bethea v. Davis

United States District Court, Seventh Circuit

September 6, 2013

TYRONE BETHEA, # K-80900, Plaintiff,
v.
RANDY DAVIS, Defendants.

MEMORANDUM AND ORDER

MICHAEL J. REAGAN, District Judge.

Plaintiff is currently incarcerated at Vienna Correctional Center ("Vienna"), where he is serving a 6-year sentence for robbery. This matter is now before the Court for preliminary review under 28 U.S.C. § 1915A of Plaintiff's Second Amended Complaint (Doc. 11). He brings this pro se civil rights action pursuant to 42 U.S.C. § 1983, seeking damages for violations of his rights which he claims have occurred during his confinement at Vienna. He also invokes the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680 (Doc. 11, p. 1).

Plaintiff states that he was sent to Vienna on March 20, 2013. He was initially housed on the second floor of Building 19, and was moved to the third floor of that unit on April 7, 2013. His statement of claim includes a string of legalese and nonsensical statements that appear to be copied from other prisoner complaints filed recently in this Court, for example, "Gross Negligence Abestoes Criminal Malfeasance with harmful intent, torque claim...." (Doc. 11, p. 5). This gibberish does nothing to advance Plaintiff's claim, and shall not be considered further. However, Plaintiff also includes some specific factual allegations regarding the conditions under which he is housed at Vienna.

The complaint alleges that in Plaintiff's building, the bathroom walls are rusted and moldy, the sleeping area is infested with spiders and bugs, his mattress and pillow are mildewed, rainwater leaks from the ceiling onto the beds and through the light fixtures, and the showers are rusted out (Doc. 11, p. 5). These portions of Plaintiff's claim shall be designated as

Count 1.

Plaintiff also complains that inmates are housed together with rival gang members and with mental health patients. These claims shall be designated as Count 2.

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 Count 1 of the complaint articulates a colorable Eighth Amendment claim against Defendant Davis for housing Plaintiff in conditions which place his health at risk. However, Plaintiff's remaining allegations in Count 2 fail to state a claim upon which relief may be granted. That claim, as well as the FTCA claim (Count 3) shall be dismissed for the following reasons.

Count 2 - Failure to Segregate Inmates

Plaintiff does not indicate that he has suffered any harm due to the Defendant's policy of housing rival gang members together, or of mixing mental health patients with other inmates. These practices do not violate the Constitution in and of themselves. While "prison officials have a duty... to protect prisoners from violence at the hands of other prisoners, " Farmer v. Brennan, 511 U.S. 825, 833 (1994), not all instances of inmate-on-inmate violence raise constitutional concerns. Plaintiff does not say that he has been attacked, nor does he claim that he was the target of any specific threat or that he requested protection from any prison official. This claim shall be dismissed without prejudice.

Count 3 - Federal Tort Claims Act

The FTCA provides jurisdiction for suits against the United States regarding torts committed by federal officials, not state officials. The only named Defendant herein, Vienna Warden Randy Davis, is a state official. The same would be true of any other Vienna employee. Therefore, Plaintiff's claim does not fall within the jurisdiction of the FTCA. Count 3 shall be dismissed with prejudice.

Motion for Leave to Proceed In Forma Pauperis ("IFP") (Docs. 3 & 6)

Plaintiff has filed two motions for leave to proceed IFP, and has submitted an affidavit stating that he has no employment, has received no income for the last twelve months, and has no assets or cash on hand. However, he has not tendered a complete certified copy of his inmate trust fund account statement. The Court has requested a trust fund statement for the six-month period immediately preceding the filing of this case from the Vienna Correctional Center, but to date has not received information sufficient to determine the amount of Plaintiff's initial partial payment. Based on Plaintiff's affidavit of indigence, the Court concludes that he is unable to pay in full the $350.00 filing fee in this case at this time, and therefore it is appropriate to permit him to proceed IFP in this case without full prepayment of the fee. At such time as the Court receives from the institution's Trust Fund Officer the certified copy of Plaintiff's trust fund account statement as requested, the Court will enter an order authorizing the Trust Fund Officer to deduct from Plaintiff's trust fund account the initial partial filing fee, and to forward this payment to the Clerk of Court. The order ...


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