United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE United States District Judge.
matter is before the Court for review of Plaintiff’s
First Amended Complaint (Doc. 18). The amended complaint was
filed on March 15, 2016, at the direction of the Court,
following the dismissal of the original complaint (Doc. 1)
for failure to state a claim upon which relief may be
granted. When the original pleading was dismissed, Plaintiff
was warned that if he either failed to submit an amended
complaint, or if his amended complaint failed to state a
claim, this case would be dismissed with prejudice and he
would be assessed a “strike” pursuant to 28
U.S.C. § 1915(g) (Doc. 9).
First Amended Complaint contains no statement of claim. The
Court entered an order on March 18, 2016, informing Plaintiff
that his pleading was incomplete, and instructing him to
re-file his complete amended complaint, including a statement
of claim, in 14 days (Doc. 20). That deadline has now come
and gone. Plaintiff has not re-submitted his amended
complaint, and the Court has received no further
communication from him. Thus, the Court must consider the
merits of the First Amended Complaint in its present
First Amended Complaint (Doc. 18)
names two Defendants - Vienna Correctional Center Warden
Love, and Officer Plummber. Nowhere in the amended complaint
does Plaintiff describe what either of these officials did or
indicate how they allegedly violated his civil rights. The
only factual information in the document is contained in a
copy of a grievance filed by Plaintiff, which describes the
April 8, 2015, incident when Plaintiff was the victim of an
apparently unprovoked attack by another Vienna inmate (Doc.
1, pp. 6-7). In the grievance, Plaintiff states that there
was only one correctional officer per wing to supervise over
100 inmates, and this person failed to protect him from the
“younger more violent offender” who attacked him
(Doc. 1, p. 7). Although the grievance does not identify the
officer by name, it appears that this individual was
Review Pursuant to 28 U.S.C. § 1915A
order to state a claim against a Defendant, a plaintiff must
describe what each named Defendant did (or failed to do),
that violated the plaintiff’s constitutional rights.
Section 1983 creates a cause of action based on personal
liability and predicated upon fault; thus, “to be
liable under § 1983, an individual defendant must have
caused or participated in a constitutional
deprivation.” Pepper v. Village of Oak Park,
430 F.3d 809, 810 (7th Cir. 2005) (citations omitted). As
explained in the order dismissing the original complaint, a
prison official cannot be held liable for failure to protect
a plaintiff from attack by another inmate unless the official
knew that the plaintiff was in danger of attack yet failed to
act to mitigate the danger.
Defendant Warden Love, the amended complaint includes no
facts to indicate he had any involvement or knowledge of the
attack or the events preceding it. Accordingly, the amended
complaint states no claim against Defendant Love.
construing the amended complaint to assume that Defendant
Plummber was the correctional officer in charge of the
housing wing at the time Plaintiff was attacked, Plaintiff
likewise fails to state a viable claim against this
Defendant. The mere fact that Defendant Plummber was on duty
at the time of the attack is not sufficient to hold him
liable for a failure to protect Plaintiff. Instead, Defendant
Plummber must have been made aware that Plaintiff was in
danger of harm from that inmate, before the assault occurred.
The facts included in the attached grievance do not show that
Plaintiff asked for protection from the inmate, or that
Defendant Plummber was otherwise informed that Plaintiff was
in danger. Instead, it appears that Plaintiff was the victim
of a random, unforeseen assault. A prison official cannot be
held liable under these circumstances. Therefore, Plaintiff
fails to state a claim upon which relief may be granted
against Defendant Plummber.
reasons stated above, this action is DISMISSED with
prejudice for failure to state a claim upon which
relief may be granted. Defendants LOVE and
PLUMMBER are DISMISSED from
this action with prejudice. All pending motions are
DENIED AS MOOT.
is ADVISED that this dismissal shall count
as one of his allotted “strikes” under the
provisions of 28 U.S.C. § 1915(g). Plaintiff’s
obligation to pay the filing fee for this action was incurred
at the time the action was filed, thus the filing fee of
$350.00 remains due and payable. See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464,
467 (7th Cir. 1998).
Plaintiff wishes to appeal this dismissal, his notice of
appeal must be filed with this Court within thirty days of
the entry of judgment. Fed. R. App. P. 4(a)(1)(A). A motion
for leave to appeal in forma pauperis should set
forth the issues Plaintiff plans to present on appeal.
See Fed. R. App. P. 24(a)(1)(C). If Plaintiff does
choose to appeal, he will be liable for the $505.00 appellate
filing fee irrespective of the outcome of the appeal.
See Fed. R. App. P. 3(e); 28 U.S.C. §
1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724,
725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d
857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133
F.3d 464, 467 (7th Cir. 1998). Moreover, if the appeal is
found to be nonmeritorious, Plaintiff may also incur another
“strike.” A proper and timely motion filed
pursuant to Federal Rule of Civil Procedure 59(e) may toll
the 30-day appeal deadline. Fed. R. App. P. 4(a)(4). A Rule
59(e) motion must be filed no more than twenty-eight (28)
days after the entry of the judgment, and this 28-day
deadline cannot be extended.
Clerk shall CLOSE THIS CASE and enter