United States District Court, S.D. Illinois
JOSE A. VARGAS, #11190-089, Plaintiff,
LIEUTENANT SMITH and UNITED STATES OF AMERICA, Defendants.
MEMORANDUM AND ORDER
PHIL GILBERT United States District Judge.
his incarceration at the Federal Correctional Institution
located in Greenville, Illinois
(“FCI-Greenville”), Plaintiff Jose Vargas brought
this action pursuant to the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346, 2671-2680,
and Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971). In the Complaint, Plaintiff alleges that he was
attacked by a gang known as the “Latin Folks” one
week after being released from protective custody into the
general prison population in August 2016. (Doc. 1, p. 5).
Plaintiff sustained a serious head injury, which the
prison's medical staff allegedly failed to properly
treat. Id. In connection with these events, he
asserts a claim under the FTCA against the United States and
an Eighth Amendment claim against Lieutenant Smith.
Id. Plaintiff seeks monetary relief. (Doc. 1, p. 6).
case is now before the Court for a preliminary review of the
Complaint (Doc. 1) pursuant to 28 U.S.C. § 1915A, which
(a) Screening - The court shall review,
before docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for Dismissal - On review, the
court shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim on
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
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 any reasonable
person would find meritless. 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. At
this juncture, the factual allegations of the pro se
complaint are to be liberally construed. See Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.
2009). The Complaint survives screening under this standard.
request, Plaintiff was placed in protective custody in the
Special Housing Unit (“SHU”) at FCI-Greenville
when he transferred there in June 2016. (Doc. 1, p. 5).
Plaintiff notified prison officials that the Latin Folks had
targeted him for attack, and his life was in danger.
Id. He remained in protective custody until August
2, 2016. Id.
date, Lieutenant Smith pulled Plaintiff from his cell and
notified him that he was being transferred into the general
prison population. (Doc. 1, p. 5). Plaintiff informed
Lieutenant Smith that he would be assaulted by the Latin
Folks, if he was placed in the general population.
Id. But the lieutenant explained that
Plaintiff's threat assessment was deemed
“unverified” after members of the gang said they
had no intention of harming him. Id. Plaintiff
warned Lieutenant Smith that this was simply a ruse aimed at
securing Plaintiff's release into the general population
so that the gang could carry out its plan to attack him.
Id. Lieutenant Smith was unpersuaded by these
comments. Id. He transferred Plaintiff anyway.
August 9, 2016, the Latin Folks “savagely
attacked” Plaintiff. (Doc. 1, p. 5). He sustained
serious head injuries during the attack. Id. Even
so, prison medical personnel did not send Plaintiff to the
hospital for immediate evaluation and treatment, even after
he asked them to do so. Id. He does not describe
what medical care was provided on site at the prison, if any.
Id. However, Plaintiff alleges that he still suffers
from headaches, dizziness, and blurred vision. Id.
now brings a claim for money damages against the United
States under the FTCA, based on the negligence of the prison
officials. (Doc. 1, pp. 5-6). In addition, he asserts an
Eighth Amendment claim against Lieutenant Smith under
Review Under 28 U.S.C. § 1915A
facilitate the orderly management of future proceedings in
this case and in accordance with the objectives of Federal
Rules of Civil Procedure 8(e) and 10(b), the Court has
organized the claims in Plaintiff's pro se
Complaint into the following counts:
Count 1 - Defendant United States, by and through the
negligence of Defendant Lieutenant Smith, is liable under the
Federal Tort Claims Act for failing to protect Plaintiff from