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Walker v. Godinez

United States District Court, Seventh Circuit

September 24, 2013

FREDRICK WALKER, Plaintiff,
v.
SALVADOR GODINEZ, KRISTA ALLSUP, SHERRY BENTON, Defendant.

ORDER

DONALD G. WILKERSON United States Magistrate Judge

Now pending before the Court is the Motion for Judgment on the Pleadings filed by Defendants, Salvador Godinez, Krista Allsup, and Sherry Benton, [1] on March 29, 2013 (Doc. 52). For the reasons set forth below, the Motion is GRANTED.

Background

Plaintiff alleges that the above Defendants (in addition to a number of Defendants who have been dismissed from this lawsuit) engaged in various act from the date that he was incarcerated at Menard Correctional Center, January 5, 2009, that resulted in his assault by other inmates in 2011. Plaintiff’s claims were screened pursuant to 28 U.S.C. § 1915A and the only counts that remain in this action are:

Count 1 – Failure to protect against Defendants Godinez and Benton

Count 2 – Due process claim for deprivation of property against Defendant Allsup. Defendants filed a Motion for Judgment of the Pleadings on March 29, 2013 (Doc. 52). On May 23, 2013, Plaintiff was granted until July 8, 2013 to file a response (Doc. 55). No response has been filed as of the date of this Order. Local Rule 7.1(c) provides that the failure to respond may, “in the Court’s discretion, be considered an admission of the merits of the motion.” The Court finds that Plaintiff’s failure to respond is an admission of the merits of the Motion. Plaintiff did not file a timely response; when this Court highlighted this failure and granted Plaintiff additional time, he still did not respond. For this reason, and Plaintiff’s failure to prosecute, the motion is GRANTED.

In any event, the merits of the Motion will be addressed.

Discussion

Federal Rule of Civil Procedure 12(c) provides that a party may move for judgment on the pleadings. Defendants are entitled to judgment: “Only when it appears beyond a doubt that the plaintiff cannot prove any facts to support a claim for relief and the moving party demonstrates that there are not material issues of fact to be resolved.” Moss v. Martin, 473 F.3d 694, 698 (7th Cir. 2007). Thus, the same standard that is used to evaluate a motion for relief pursuant to Rule 12(b)(6) is used to determine whether Plaintiff has stated a claim for which relief may be granted.

On a defendant’s motion to dismiss, all facts in the complaint are accepted as true. Doss v. Clearwater Title Co., 551 F.3d 634, 639 (7th Cir. 2008). The complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To state a cognizable claim, the complaint must provide enough detail to give defendants fair notice of the nature of the claim and the grounds upon which it rests and to show that relief is plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56 (2007). Conclusory statements or the mere recitation of the elements of the cause of action are insufficient. Id. The pleading must contain factual allegations that “raise the right to relief above the speculative level.” Id. at 555. In Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the Supreme Court emphasized two underlying principles in Twombly: first, that legal conclusions stated in a complaint are not entitled to the assumption of truth reserved to factual allegations, and second, to survive a motion to dismiss, a complaint must state a plausible claim for relief. “Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not ‘show[n]’–‘that the pleader is entitled to relief.’” Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)). To survive a motion to dismiss, a complaint must include sufficient factual allegations to “state a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). Factual plausibility exists when a plaintiff alleges “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. The plausibility standard requires more than “a sheer possibility that a defendant has acted unlawfully.” Id. Facts “merely consistent with” a defendant’s liability “stop short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 544 U.S. at 557).

Count 1 against Defendants Godinez and Benton

Plaintiff alleges that both Godinez and Benton failed to protect him in violation of the Eighth Amendment. With respect to Defendant Godinez, Plaintiff alleges that:

This defendant was advised of plaintiffs need for protective custody, and staffs retaliatory actions against plaintiff and on or about October 5, 2010 this defendant allowed plaintiff to be assaulted, and abussed [sic] by staff members (the defendants) when he being fully complized [sic] of all the facts related to plaintiffs assaults, and request for protective custody knowingly and ...

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