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Ramirez v. Godinez

United States District Court, Seventh Circuit

November 1, 2013

DARWIN RAMIREZ, Plaintiff,
v.
S.A. GODINEZ, et al., Defendants.

MERIT REVIEW OPINION

SUE E. MYERSCOUGH, District Judge.

Plaintiff, proceeding pro se and incarcerated in Western Illinois Correctional Center, seeks leave to proceed in forma pauperis.

The case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A. In reviewing the Complaint, the Court accepts the factual allegations as true, liberally construing them in Plaintiff's favor. Turley v. Rednour, ___ F.3d ___ , 2013 WL 3336713 *2 (7th Cir. 2013). However, conclusory statements and labels are insufficient. Enough facts must be provided to "state a claim for relief that is plausible on its face.'" Alexander v. U.S. , 721 F.3d 418, 422 (7th Cir. 2013) (quoted cite omitted).

Plaintiff asserts that he is from Honduras and knows very little English. He alleges that Defendants have failed to protect Plaintiff from a serious risk of substantial harm of attack by other inmates, due to the nature of Plaintiff's crime (predatory criminal sexual assault of a child), Plaintiff's sexual orientation (homosexual), and Plaintiff's slight stature. Plaintiff maintains that his roommates have threatened to beat him, have actually beat him, and have extorted money from him. Plaintiff contends that IDOC needs a separate wing or protective custody placement for vulnerable inmates like himself.

Plaintiff also challenges his placement in segregation as punishment for refusing to cell with an inmate who presented a serious risk of substantial harm to Plaintiff.

Lastly, Plaintiff alleges that Defendant Dr. Hinton has been deliberately indifferent to Plaintiff's serious mental health needs by failing to provide a Spanish-speaking mental health professional who can communicate with Plaintiff. Plaintiff does not identify what his serious mental health need is.

The Court concludes that Plaintiff states arguable Eighth Amendment claims for deliberate indifference to Plaintiff's serious mental health needs and to a substantial risk of serious harm to Plaintiff from other inmates. The current Warden of Western will be added as a Defendant, because Plaintiff seeks injunctive relief. Plaintiff also pursues a claim under the Prison Rape Elimination Act, but no private cause of action exists under that Act. Rivera v. Drake, 2010 WL 1172602 (E.D. Wis. 2010) (unpublished) ("Nothing in the Act suggests that it was intended to create a private cause of action, and nothing suggests that Congress intended to override the state's Eleventh Amendment immunity.") Plaintiff also cites the United Nation's Universal Declaration of Human Rights, but that also offers no private right of action. Sosa v. Alvarez-Machain , 542 U.S. 692, 734, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (the Universal Declaration of Human Rights "does not of its own force impose obligations as a matter of international law.").

Plaintiff is advised that he must identify the names of his "Doe" Defendants before those Defendants can be served. If Plaintiff cannot discover the names on his own, then Plaintiff should try to discover the names from Defense counsel, after Defense counsel has filed an appearance. Failure to timely identify Doe Defendants without good cause will result in the dismissal of the Doe Defendants, without prejudice.

IT IS THEREFORE ORDERED:

1) Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states Eighth Amendment claims for deliberate indifference to his serious medical needs and deliberate indifference to a substantial risk of serious harm. This case proceeds solely on the claims identified in this paragraph. Any additional claims shall not be included in the case, except at the Court's discretion on motion by a party for good cause shown or pursuant to Federal Rule of Civil Procedure 15.

2) This case is now in the process of service. Plaintiff is advised to wait until counsel has appeared for Defendants before filing any motions, in order to give Defendants notice and an opportunity to respond to those motions. Motions filed before Defendants' counsel has filed an appearance will generally be denied as premature. Plaintiff need not submit any evidence to the Court at this time, unless otherwise directed by the Court.

3) The Court will attempt service on Defendants by mailing each Defendant a waiver of service. Defendants have 60 days from the date the waiver is sent to file an Answer. If Defendants have not filed Answers or appeared through counsel within 90 days of the entry of this order, Plaintiff may file a motion requesting the status of service. After Defendants have been served, the Court will enter an order setting discovery and dispositive motion deadlines.

4) With respect to a Defendant who no longer works at the address provided by Plaintiff, the entity for whom that Defendant worked while at that address shall provide to the Clerk said Defendant's current work address, or, if not known, said Defendant's forwarding address. This information shall be used only for effectuating service. Documentation of forwarding addresses shall be retained only by the Clerk and shall not be maintained in the public docket nor disclosed by the Clerk.

5) Defendants shall file an answer within 60 days of the date the waiver is sent by the Clerk. A motion to dismiss is not an answer. The answer should include all defenses appropriate under the Federal Rules. The answer and subsequent pleadings shall be to the issues and claims stated in this Opinion. In general, an answer sets forth Defendants' positions. The Court does not rule on the merits of those positions unless and ...


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