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Colasurdo v. N. Ward

United States District Court, S.D. Illinois

July 25, 2017

JOHN COLASURDO, #K88438, Plaintiff,


          MICHAEL J. REAGAN, United States District Court Chief Judge

         Plaintiff John Colasurdo, an inmate who is currently incarcerated at Pontiac Correctional Center ("Pontiac"), brings this civil rights action pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional rights at Menard Correctional Center ("Menard"). (Doc. 1). According to the Complaint, Plaintiff was repeatedly raped by his cellmate in 2015 and then denied protective custody by Menard officials. (Doc. 1, pp. 8-11). He now sues these officials for violating his rights under the Eighth Amendment. Id. Plaintiff seeks declaratory judgment and monetary damages. (Doc. l, p. 11).

         This case is now before the Court for a preliminary review of the Complaint (Doc. 1) 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). The Complaint survives screening under this standard.

         The Complaint

         In September 2015, Menard officials made the decision to transfer Inmate Njos into a cell with Plaintiff. (Doc. 1, p. 8). Njos identified himself as the chief of a gang, known as the Latin Folks. Id. The Complaint describes Njos as a violent inmate who is “twice the size” of Plaintiff and has a known history of aggression.[1] Id. In the three years prior to his transfer, Njos was housed in a single cell in administrative detention. Id. Warden Butler, Assistant Warden Watson, John Doe 1 (placement officer), and John Doe 2 (investigative affairs supervisor) allegedly knew about his gang affiliation and history of aggression but declined to conduct an aggression hearing or screening before transferring Njos into a cell with Plaintiff. Id.

         In October and November 2015, Njos repeatedly raped Plaintiff. (Doc. 1, p. 8). On November 6th, he gave Plaintiff three options: (1) transfer into protective custody; (2) pay a flat fee of $150 plus twenty percent of Plaintiff's commissary purchases going forward; or (3) endure an attack by a gang member. Id. Plaintiff received a call pass and met with a social worker the following day. Id. He reported the “issues” with Njos and requested protective custody (“PC”). Id. The social worker sent him to “unapproved PC intake right away.” Id. The same day, Plaintiff submitted all necessary paperwork for protective custody to Counselor Cowan. Id.

         He appeared at a hearing before Counselor Cowan and John Doe 4 (investigative officer) approximately ten days later. (Doc. 1, p. 8). For reasons unrelated to the inmate attack, they denied his request for protective custody. Id. They allegedly focused instead on the fact that Plaintiff had previously received three staff assault tickets and two attempted staff assault tickets. Id. Plaintiff insists that all, but one, were false. Id. He describes the decision to deny his request for protective custody as “malicious.” Id.

         Plaintiff next asked Officer Ward, an internal affairs officer, for protective custody. (Doc. 1, p. 8). Plaintiff described the “issues” with Njos and claimed him as an enemy. Id. Officer Ward told Plaintiff “not to worry” because the two inmates would be separated. Id. The officer then spoke with Njos “to see whether or not [the] allegations were true.” Id. Officer Ward ultimately denied Plaintiff's request for protective custody and his request for a polygraph test. Id.

         Plaintiff next filed an emergency grievance with Warden Butler and a regular grievance with Counselor Cowan, in which he again requested protective custody. (Doc. 1, p. 8). Both individuals “refused or failed to answer [P]laintiff's grievance.” Id.

         Assistant Warden Watson, Supervisor Doe 2, and Officer Ward refused or failed to treat Plaintiff and Njos as enemies. (Doc. 1, p. 8). Five days later, Officer Doe 1 and Supervisor Doe 2 transferred Njos to 8 Gallery, in close proximity to Plaintiff. Id. Njos viciously attacked Plaintiff soon thereafter. (Doc. 1, pp. 8-9). Plaintiff sustained numerous injuries, including a chipped tooth, a sore neck, and a head injury that resulted in an open wound, swelling, bruising, scarring, and headaches. (Doc. 1, p. 9). He received treatment for his ...

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