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Tucker v. Odear

United States District Court, C.D. Illinois

December 19, 2016

ARTHUR AARON TUCKER, Plaintiff,
v.
OFFICER ODEAR. et. al., Defendants

          MERIT REVIEW AND MANAGEMENT ORDER

          HAROLD A. BAKER UNITED STATES DISTRICT JUDGE.

         This cause is before the Court for consideration of Plaintiff's motion for leave to file an amended complaint. [6]

         Plaintiff 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.

         Plaintiff responded with a motion to proceed in forma pauperis which was granted by the Court. [4]; 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 Procedure 15.[6]

         The 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.

         Plaintiff's 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.

         On 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.

         On 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 tooth.

         Plaintiff 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.

         As for 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.

         Attached 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.

         IT IS 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 ...

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