United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE U.S. District Judge
Levi Foerderer, an inmate who is currently incarcerated at
the Federal Correctional Complex in Coleman, Florida, brings
this pro se action pursuant to Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971)
(“Bivens”). In his Complaint, Plaintiff
claims that during his time at FCI Greenville
(“Greenville”), the defendants failed to protect
him from other inmates in violation of the Eighth Amendment,
leading to his sustaining injuries and being exposed to an
increased risk of violence from inmates who became aware that
Plaintiff previously acted as a government witness. (Doc. 1).
This case is now before the Court for a preliminary review of
the Complaint 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.
careful review of the Complaint and any supporting exhibits,
the Court finds it appropriate to allow part of this action
to proceed past the threshold stage.
Complaint (Doc. 1), Plaintiff makes the following
allegations: Case Manager Mathias allowed a known violent
inmate, Michael Perkins, to be placed in Plaintiff's cell
even after Plaintiff told her of his prior history of being
assaulted for being a government witness and about a
court's finding that he needs extra protection due to his
previous cooperation with the government. (Doc. 1, p. 5).
Mathias knew of Perkins' history of violence because her
position requires her to closely review all inmate central
files of inmates on her caseload. Id. In their
conversation, Plaintiff specifically requested to be moved to
a low security institution because his points were low and
“other inmates had been assaulted for being cooperating
witnesses and due to [his] prior history of being assaulted,
[Plaintiff] felt especially vulnerable to attacks.”
(Doc. 1, p. 12). In response to Plaintiff mentioning the
court finding that he needed protection, Mathias
“laughed and said she did not have to follow court
findings and that [Plaintiff] would be fine.”
Goodrich placed Perkins, a known violent inmate, in
Plaintiff's cell even after Plaintiff expressed deep
concern over potential attacks due to his having been a
government witness and pleaded with Goodrich not to place any
violent inmates with him. (Doc. 1, p. 5). Goodrich knew of
Perkins' history of violence because his position
requires him to review the files of all inmates on his
caseload. Id. Goodrich also knew that a court
determined that Plaintiff needed to be protected, but ignored
the court's finding when he placed Perkins in
Plaintiff's cell. Id. In his conversation with
Goodrich, Plaintiff expressed concern about someone finding
out that he had testified in court because other inmates were
asking for paperwork. (Doc. 1, p. 13). Goodrich asked
Plaintiff if anyone had asked him, and Plaintiff replied not
yet. Id. Goodrich told Plaintiff not to worry until
someone asked him. Id. Plaintiff asked Goodrich to
recommend that he be transferred to a “low, ” but
Goodrich said Plaintiff would have to speak to Mathias.
week, Goodrich informed Plaintiff that he would be getting a
new cellmate. Id. Plaintiff told him not to place
anyone with him who would give him problems. Id.
That afternoon, Michael Perkins was placed in Plaintiff's
cell. Id. On August 19, 2016, Perkins entered the
cell at approximately 9:00pm. Id. He had an email
stating that Plaintiff had cooperated with authorities and
that he was working for the U.S. Marshals under a different
name. Id. Perkins told Plaintiff that he had until
noon the following day to find somewhere else to live if he
did not want to get “smashed.” (Doc. 1, pp.
13-14). Plaintiff told him there were not open cells, but
Perkins did not revise his ultimatum. (Doc. 1, p. 14).
next morning, Perkins awoke to a noise Plaintiff made and
looked at Plaintiff angrily. Id. Plaintiff told him
that he needed to find somewhere else to live if he did not
like Plaintiff because he was not going to move out of his
cell. Id. Perkins cursed at Plaintiff and advanced
toward him aggressively, with his fists balled up.
Id. Plaintiff ducked his advance and Perkins tripped
on Plaintiff's leg. Id. Perkins fell and hit his
head on a desk. Id. Perkins told Plaintiff that he
was a “dead rat” and lunged toward him.
Id. Plaintiff feared for his life, particularly due
to Perkins' large size (6 feet, 4 inches tall and 350
pounds). Id. Plaintiff defended himself by striking
Perkins in the back and side of his head as he grabbed
Plaintiff's legs and attempted to pick him up. (Doc. 1,
p. 15). Plaintiff then pushed Perkins out of the cell, and
Perkins left. Id. During the confrontation,
Plaintiff broke his hand while striking Perkins. Id.
This injury caused Plaintiff a great deal of pain.
left his cell and when he returned, Perkins and another
inmate were digging through Plaintiff's personal things.
Id. Plaintiff asked them to stop, at which point
three officers approached the cell and detained both
Plaintiff and Perkins. Id. Plaintiff was taken to
the Special Housing Unit (“SHU”), where SIS
Technician Serio attempted to question Plaintiff about what
had occurred within earshot of other SHU inmates.
Id. Plaintiff responded that he could not tell him
there because other inmates would be able to hear what was
said. (Doc. 1, p. 16). Plaintiff was moved to a cell occupied
by Jason Foerster, a member of Latin Folk street gang, who
was in the SHU for assaulting another inmate. Id.
His gang has an assault-on-sight policy for cooperating
witnesses. Id. Foerster was aware that Plaintiff had
cooperated with the government because Perkins put
Plaintiff's name and case number in numerous places in
the SHU law library. Id. Another inmate in the SHU
informed Plaintiff that Perkins had stolen the addresses for
his 7-year-old daughter, her mother and Plaintiff's
sister and had handed them out to other SHU inmates,
instructing them to write them obscene letters because they
were “strippers.” Id. Plaintiff asserts
that he never should have been placed with Perkins because he
is low security and Perkins is high security. (Doc. 1, p.
Doe 1, a member of the mailroom staff at Greenville, allowed
an article about Plaintiff's cooperation with the
government and his being beaten as a result of his testimony
into the institution through the mail. (Doc. 1, p. 6). In the
article was a picture of Plaintiff, with a bruised and
swollen face from his having been beaten. Id. John
Doe should have known about the article because
“program statement policy 5800.10 requires mandatory
opening and inspecting of all mail and packages for
contraband, ” and he also had the common knowledge that
“cooperating witnesses face serious harm and death in
Manager Robinson allowed Goodrich and Mathias to place a
violent inmate in Plaintiff's cell even after he
expressed his deep concern for his life and safety to her.
Id. Robinson was in a position that required her to
oversee the decisions of Mathias and Goodrich. Id.
Despite this, she told Plaintiff that he needed to speak to
Goodrich, his counselor or his case manager about his fears
of being attacked and the court order stating that Plaintiff
needed protection. (Doc. 1, p. 12). Robinson told Plaintiff
that addressing his concerns on these issues was “not
her job” and that she did not “want to hear
Doe 2, a DSCC administrator, transferred Plaintiff to a USP
with medium points after Greenville's warden requested he
be sent to one. (Doc. 1, p. 7). Plaintiff had expressed his
fear of attack to John Doe 2 and sent him copies of his
“J&C, ” which stated: “The defendant
has been the subject to acts of violence and needs to ...