United States District Court, N.D. Illinois, Eastern Division
JOHN J. THARP, JR.
reasons set forth below, the defendants' motion to
dismiss  is granted. The amended complaint is dismissed
without prejudice. Plaintiff is given leave to replead on or
before October 6, 2017.
Francisco Alberto Romero-Arrizabal brings his Amended
Complaint pursuant to 42 U.S.C. § 1983 and Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), alleging that the defendants, all U.S.
Immigration and Customs Enforcement (“ICE”)
officers, violated his First and Eighth Amendment rights
while he was in their custody. Specifically, Romero-Arrizabal
alleges that ICE officers violated his First Amendment right
to file grievances by “threatening physical harm and
intimidating Plaintiff into withdrawing his grievance”
and the Eighth Amendment's prohibition on cruel and
unusual punishment by “abandoning Plaintiff in the back
of [a] van under extreme conditions.” Amended Complaint
(“Compl.”) at ¶ 20, 24, ECF No. 43.
Defendants Fernando Ramos and Officer Rangel have moved to
dismiss the Amended Complaint in its entirety.
must on a motion to dismiss, the Court accepts the well pled
facts in the complaint as true and draws all permissible
inferences in favor of the plaintiff. Agnew v. NCAA,
683 F.3d 328, 334 (7th Cir. 2012). On July 30, 2014,
plaintiff Francisco Alberto Romero-Arrizabal, while in ICE
custody, was transported to the “Broadview Service
Staying ICE facility” with approximately ten other
detainees. Compl. ¶ 9. Upon arrival, while the other
inmates were unloaded from the transport van,
Romero-Arrizabal was left shackled in the van for 30 to 40
minutes under extreme temperatures without water leading to
unspecified “permanent” injuries. Id. at
¶ 10-12. After the incident, Romero-Arrizabal filed a
grievance against the ICE officers
left him in the van. Id. at ¶ 13. In response
to his filed grievance, Romero-Arrizabal alleges that he was
retaliated against, threatened physically, and intimidated by
ICE Supervisor Fernando Ramos, Deportation Officer Rangel,
“and/or John Does 1-4.” Id. at ¶
14. On January 21, 2015, “Ramos, Rangel and/or John
Does 1-4” misrepresented the status of his Board of
Immigration Appeals case to improperly obtain
Romero-Arrizabal's signature on a deportation order.
Id. at ¶ 15. When Romero-Arrizabal refused to
sign the order “Ramos, Rangel and/or John Does
1-4” continued to threaten and intimidate him.
Id. at ¶ 16.
filed this suit against Ramos, Rangel, and five John Doe ICE
officers on December 22, 2015, claiming the van incident
violated his Eighth Amendment rights while the retaliation
and intimidation violated his First Amendment rights.
Defendant Ramos moved to dismiss Romero-Arrizabal's
amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) on March 3, 2017. Defendant Rangel joined the motion
without raising further arguments. See ECF No. 58.
survive a motion to dismiss under Rule 12(b)(6) for failure
to state a claim, a complaint must “contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Adams v. City of
Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting
Iqbal, 556 U.S. at 678). A plaintiff does not need
“detailed factual allegations, ” but more than
“labels and conclusions” and “a formulaic
recitation of the elements of a cause of action” are
required. Twombly, 550 U.S. at 555. Determining
whether a complaint plausibly states a claim for relief is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but has not ‘show[n]'-‘that the
pleader is entitled to relief.'” Id.
(quoting Fed. Rule Civ. P. 8(a)(2)).
First Amendment Claim
complaint fails to state a claim that the defendants violated
Romero-Arrizabal's First Amendment rights. While
Romero-Arrizabal alleges that “Defendants Ramos, Rangel
and/or John Does 1-4” subjected him to physical threats
and intimidation, there is nothing in his complaint-or
response brief-that sufficiently ties any threats or
intimidation to Ramos. See Compl. ¶ 14; see
also Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th
Cir. 1986) (a successful § 1983 claim requires
“[a] causal connection, or an affirmative link, between
the misconduct complained of and the official sued”).
While a plaintiff need not provide detailed factual
allegations, see Twombly, 550 U.S. at 555,
Romero-Arrizabal's failure to tie any action to the
defendants personally results in statements that are
conclusory rather than factual. See Brooks v. Ross,
578 F.3d 574, 580 (7th Cir. 2009) (finding that allegations
that “one or more of the Defendants” had engaged
in acts depriving the plaintiff of his constitutional rights
was “vague phrasing, which does not adequately connect
specific litigants to illegal acts”). Further, there is
nothing in the complaint that indicates what Ramos said or
did that constituted a threat or intimidation, so the
complaint fails to provide sufficient notice of the
allegations against him. See Id. at 581. For
example, it is unclear if Ramos himself directly attempted to
obtain the signature on Romero-Arrizabal's deportation
order, ordered a subordinate to do so, or had nothing to do
with it whatsoever.
argues that he requires discovery to determine “the
identity and all the specific activities of each individual
actor.” Resp. at 6. Pretrial discovery has been allowed
in situations where the victim lacks knowledge that is in the
hands of the defendant, such as where circumstances make it
impossible for the plaintiff to identify the injuring party.
See Billman v. Indiana Dep't of Corr., 56 F.3d
785, 789 (7th Cir. 1995) (“ If a prisoner makes
allegations that if true indicate a significant likelihood
that someone employed by the prison system has inflicted
cruel and unusual punishment on him, and if the circumstances
are such as to make it infeasible for the prisoner to
identify that someone before filing his complaint, his suit
should not be dismissed as frivolous.”); Santiago
v. Walls, 599 F.3d 749, 759-60 (7th Cir. 2010)
(“Mr. Santiago cannot know for certain what Warden
Wells knew without discovery.”). Although
Romero-Arrizabal may not have all the facts, he should know
more than he has pled here. How many people were present
during the alleged acts of intimidation? Were Ramos or Rangel
personally present during the alleged events? Were the
officers who intimidated him the same as the ones who
attempted to improperly obtain his signature on the
deportation order? The Court does not require
Romero-Arrizabal to be able to identify all the parties
involved in the alleged conduct, but he does need to do more
to give the Court some idea of the factual basis for his
claims. As written, the complaint does nothing more than
raise the mere possibility that one or more defendants
violated Romero-Arrizabal's First Amendment rights. For
that reason, Count I is dismissed without prejudice.
Eighth Amendment Claim
prisons, the “unnecessary and wonton infliction of
pain” constitutes cruel and unusual punishment
forbidden by the Eighth Amendment. Estelle v.
Gamble, 429 U.S. 97, 103 (1976). Prisoners are entitled
to conditions that meet “the minimal civilized measure
of life's necessities.” Dixon v. Godinez,
114 F.3d 640, 642 (7th Cir. 1997) (quoting Farmer v.
Brennan, 511 U.S. 825, 843 (1994)). Conditions
“may be harsh and uncomfortable without violating the
Eighth Amendment's prohibition on cruel and unusual
punishment.” Id. A claim of constitutionally
inadequate confinement requires a two-step analysis: (1)
“whether the conditions at issue were sufficiently
serious so that a prison official's act or omission
result[ed] in the denial of the minimal civilized measure of
life's necessities;” and (2) “whether prison
officials acted with deliberate indifference to the
conditions in question.” Townsend v. Fuchs,
522 F.3d 765, 773 (7th Cir. ...