United States District Court, C.D. Illinois
MERIT REVIEW AND MANAGEMENT ORDER
A. BAKER UNITED STATES DISTRICT JUDGE.
cause is before the Court for consideration of
Plaintiff's motion for leave to file an amended
originally filed a complaint against various Adams County
Jail Defendants in Tucker v Fisher, Case No.
16-3078. On August 4, 2016, the Court found the Plaintiff had
combined unrelated claims against different Defendants in one
lawsuit. See August 4, 2016 Case Management Order.
Therefore, the Clerk of the Court was directed to open this
new lawsuit, Tucker v. Odear, Case No. 16-3222,
against Defendants Odear, Boden, Wear, Venverloh and Robbins.
Plaintiff was given 30 days to either pay the filing fee in
this case or file a motion to proceed in forma pauperis.
responded with a motion to proceed in forma pauperis which
was granted by the Court. ; August 19, 2016 Text Order.
Plaintiff has also filed a motion for leave to amend his
complaint which is granted pursuant to Federal Rule of Civil
Court is still required by 28 U.S.C. §1915A to
“screen” the Plaintiff's amended complaint,
and through such process to identify and dismiss any legally
insufficient claim, or the entire action if warranted. A
claim is legally insufficient if it “(1) is frivolous,
malicious, or fails to state a claim upon which relief may be
granted; or (2) seeks monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. §1915A.
amended complaint identifies eight Defendants including Adams
County Jail Correctional Officers Odear, Venverloh, Wear,
Robbins, Boden, Graham, Hathaway and Curran. Plaintiff says
when he entered the jail in September of 2015, he was asked
if he had any enemies within the jail for housing purposes.
Plaintiff identified two brothers and consequently, he was
housed in separate area of the jail.
October 1, 2015, one of brothers on Plaintiff's enemies
list was moved to Plaintiff's unit. Plaintiff immediately
filed a grievance and informed Officer Graham. The officer
said she would check the jail records, but he was not moved.
The next day, Plaintiff again alerted Officer Graham and
Plaintiff was moved.
January 1, 2016, Plaintiff says Officers Hathaway and Curan
moved Plaintiff to a different area of the jail where the two
brothers were housed. The brothers immediately began yelling
threats at the Plaintiff. When Plaintiff was in the middle of
the unit, the two brothers assaulted him in view of the
prison security camera. After Plaintiff pounded on the door,
Officers Cumin and Mast moved Plaintiff from the area.
Plaintiff suffered multiple bruises, bite marks and a broken
claims all the named Defendants were deliberately indifferent
to his health and safety when they failed to protect him from
the assault. Plaintiff claims he told all of the officers
when he entered the jail about his two enemies. However, only
officers who knew Plaintiff was then housed with the two
brothers could be liable for his claims. In addition,
Plaintiff admits he was moved after he alerted Officer Graham
on October 1, 2016. Although he was not moved as quickly as
he would have preferred, he has not stated a constitutional
violation based on this incident.
the January 1, 2016 assault, Plaintiff claims Defendants
Hathaway and Curan knew about his enemies list, but still
moved him to the same unit as the two brothers. It is not
clear if the two officers who moved Plaintiff after the
assault, Cumin or Mast, knew Plaintiff had been placed in the
unit, but in any event they are not names as Defendants.
to Plaintiff's amended complaint is a motion for
appointment of counsel. (Doc. #6, p. 13). The Plaintiff has
no constitutional or statutory right to the appointment of
counsel in this case. In considering the Plaintiff's
motion, the Court asks: “(1) has the indigent Plaintiff
made a reasonable attempt to obtain counsel or been
effectively precluded from doing so; and if so, (2) given the
difficulty of the case, does the plaintiff appear competent
to litigate it himself?” Pruitt v. Mote, 503
F.3d 647, 654-55 (7th Cir. 2007), citing Farmer v.
Haas, 990 F.2d 319, 322 (7th Cir.1993). The Plaintiff
has not provided any evidence demonstrating he has attempted
to find counsel on his own such as a list of attorneys
contacted or copies of letters sent or received. Therefore,
the motion is denied with leave to renew.
THEREFORE ORDERED that:
1) Pursuant to its merit review of the complaint under 28
U.S.C. § 1915A, the Court finds the Plaintiff alleges
Defendants Hathaway and Curan were deliberately indifferent
to Plaintiff's safety when they failed to protect him
from an inmate assault on January 1, 2016. The claim is
stated against the Defendants in their individual capacities
only. 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 ...