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Houck v. USA, Federal Bureau of Prisons

United States District Court, S.D. Illinois

April 18, 2017

KENNETH HOUCK, # 06743-015, Plaintiff,
v.
USA, FEDERAL BUREAU of PRISONS, MAUREEN BAIRD, J.M. POWERS, MR. SLOOP, MR. MASH, MS. G. CREWS, MR. LEPE, MR. MAY, and JOHN DOES Lieutenants 1, 2, & 3, Defendants.

          MEMORANDUM AND ORDER

          J. Phil Gilbert United States District Judge

         Plaintiff, an inmate in the United States Penitentiary in Marion, brings this action for alleged violations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). He also asserts a claim under the Federal Tort Claims Act (“FTCA”). This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A.

         Under § 1915A, the Court is required to screen prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).

         An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line between possibility and plausibility.” Id. at 557. Conversely, a complaint is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

         Applying these standards, the Court finds that some of Plaintiff's claims survive threshold review under § 1915A.

         The Complaint

         When Plaintiff arrived at Marion in August 2015, he was housed in cell #222 in X-Unit with 2 cellmates, Fletcher and Thomas. Plaintiff occupied a lower bunk pursuant to his medical permit. (Doc. 1, p. 3). On October 29, 2015, Plaintiff voluntarily enrolled in the Residential Drug and Alcohol Program (“RDAP”) and moved to a different housing area (Y-Unit). However, he decided on November 4, 2015, to leave the RDAP, which meant that he would move back to his original housing unit.

         Plaintiff was placed in cell #208 back in X-Unit, with 2 new cellmates who were not convicted sex offenders. These inmates, known as “haters, ” refused to allow sex offenders like Plaintiff to share a cell with them. Plaintiff made an agreement with these cellmates that he would find a new cell the next day, and they agreed to leave him alone for that one night. Plaintiff had been assaulted in 2011 by a group of “haters, ” leaving him with permanent injuries. He wanted to avoid a repeat occurrence.

         The following day, Fletcher and Thomas (the former cellmates) asked Mr. May (the counselor) not to return Plaintiff to their cell (#222). After Plaintiff's departure, Fletcher and Thomas had switched their bunks so that the lower bunk was no longer available. Nonetheless, May assigned Plaintiff back to #222 on the lower bunk. Plaintiff discovered this when he returned to the unit from work at around 8:10pm; he was surprised because he had never spoken to the counselor about a move. Fletcher refused to yield the lower bunk back to Plaintiff, and both cellmates were willing to fight Plaintiff rather than let him reclaim the lower bunk. (Doc. 1, p. 4). Given this situation, Plaintiff returned to cell #208 with the “hater” cellmates for the night.

         Thomas and Fletcher threatened violence against Plaintiff, and refused to allow him back into the cell. Plaintiff then sought alternatives to resolve the housing conflict. Several times, he asked the Housing Officer (Woolridge, who is not named as a Defendant) to radio a lieutenant who could address the problem because his safety had been threatened. (Doc. 1, p. 4). However, Woolridge refused to contact the lieutenant, despite hearing Plaintiff's complaint that he was being threatened by the cellmates. (Doc. 1, p. 5). Plaintiff approached staff members from another housing unit, as well as his Unit Team, seeking help to move out of cell #222. Plaintiff claims that surveillance video would show him “approaching the CO[1] several times” seeking help with a cell reassignment. (Doc. 1, p. 6). However, no prison official would take any steps to move him to a different cell. Plaintiff also claims that cellmate Thomas told a lieutenant[2] that he “would do whatever it takes but the [Plaintiff] was NOT moving back into that cell.” (Doc. 1, p. 7). Despite this warning, nothing was done to prevent Thomas from carrying out his threat.

         The second night after Plaintiff was returned to X-Unit, inmate Thomas pushed Plaintiff into a railing. (Doc. 1, p. 6). Based on these facts, Plaintiff brings an Eighth Amendment claim against several Defendants who allegedly failed to protect him from attack. (Doc. 1, p. 9).

         After the assault by Thomas, Plaintiff was charged with a disciplinary infraction for fighting. He was found guilty based largely upon video evidence, which he was not allowed to preview.

         On approximately December 4, 2016, Plaintiff made a written request to prison officials to preserve the video evidence relating to the disciplinary matter. (Doc. 1, p. 6). He sent the request to Lepe, and then to the warden when he got no response. Over a month later, Plaintiff received a response from Sloop, who said that “there was never any video to either save or review.” Id.

         Plaintiff asserts that Bureau of Prisons policy (PS § 5270.09) directs the BOP to “make every effort to review and preserve the evidence” when an inmate requests exculpatory video or audio recordings. (Doc. 1, p. 7). This policy was violated in his case, because he requested video surveillance from specific times on November 4 and 5, 2015, which would show Plaintiff going to see his Unit Team, attempting to enter another unit, and speaking to Woolridge several times. The tape would also show inmates Thomas and Fletcher leaving cell #222 and speaking with a lieutenant[3] on duty. Plaintiff filed a tort claim seeking compensation for this spoliation of evidence, and he reasserts that claim here, invoking the FTCA. (Doc. 1, pp. 8-9).

         Merits Review Pursuant to 28 U.S.C. § 1915A

         Based on the allegations of the complaint, the Court finds it convenient to divide the pro se action into the following counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit. Any other claim that is mentioned in the complaint but not addressed in this Order should be considered dismissed without prejudice.

Count 1: Eighth Amendment claim for failure to protect Plaintiff from assault by his cellmate, after Plaintiff reported threats and requested to be moved to a different cell;
Count 2: Claim for damages under the Federal Tort Claims Act, based on Marion officials' failure to preserve exculpatory videotape evidence that would have assisted Plaintiff in defending himself against disciplinary charges.

         For the reasons explained below, Count 1 may proceed against two John Doe Defendants only, and Plaintiff must identify these individuals by name before they may be served. Count 2 shall be dismissed without prejudice for failure to state a claim upon which relief may be granted.

         Count 1 - Failure to Protect

         In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court held that “prison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Id. at 833 (internal citations omitted); see also Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). However, not every harm caused by another inmate translates into constitutional liability for the corrections officers responsible for the prisoner's safety. Farmer, 511 U.S. at 834. In order for a plaintiff to succeed on a claim for failure to protect, he must show that he is incarcerated under conditions posing a substantial risk of serious harm, and that the defendants acted with “deliberate indifference” to that danger. Id.; Pinkston, 440 F.3d at 889. A plaintiff also must prove that prison officials were aware of a specific, impending, and substantial threat to his safety, often by showing that he complained to prison officials about a specific threat to his safety. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996). In other words, Defendants had to know that there was a substantial risk that those who attacked ...


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