United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Phil Gilbert United States District Judge
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.
§ 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).
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).
these standards, the Court finds that some of Plaintiff's
claims survive threshold review under § 1915A.
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.
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.
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.
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 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 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.
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).
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
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.
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 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.
Review Pursuant to 28 U.S.C. § 1915A
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
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
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
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.
1 - Failure to Protect
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 ...