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Foerderer v. Mathias

United States District Court, S.D. Illinois

June 27, 2017

LEVI FOERDERER, #10312-059, Plaintiff,


          STACI M. YANDLE U.S. District Judge

         Plaintiff 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 provides:

(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 such relief.

         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 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).

         Upon 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.

         The Complaint

         In his 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.” Id.

         Counselor 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. Id.

         That 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).

         The 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. Id.

         Plaintiff 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. 17).

         John 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 prison.” Id.

         Unit 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 it.” Id.

         John 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 ...

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