United States District Court, S.D. Illinois
JOSE A. VARGAS, Former No. 11190-089,  Plaintiff,
Lieutenant Smith, and USA Defendants.
MEMORANDUM & ORDER
PHIL GILBERT, UNITED STATES DISTRICT JUDGE.
is a former inmate in the Federal Bureau of Prisons. Until
May 2017, he was housed at FCI-Greenville. At the time of
filing, he was not incarcerated, and he currently resides in
pro se, Plaintiff filed this action for alleged
violations of his constitutional rights by persons acting
under the color of federal authority. See Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971). He
additionally seeks relief under the Federal Tort Claims Act
(“FTCA”). Plaintiff claims that Lieutenant Smith
failed to protect him from being assaulted by other inmates.
He also alleges that unspecified officials at FCI-Greenville
failed to provide necessary medical treatment for the
injuries he received during the alleged assault. Plaintiff
seeks monetary damages.
has requested leave to proceed in forma pauperis
(“IFP”) (Doc. 2) pursuant to 28 U.S.C. §
1915. Section 1915 is meant to ensure that indigent litigants
have meaningful access to the federal courts, and it applies
to non-prisoner plaintiffs and prisoners alike. Neitzke
v. Williams, 490 U.S. 319, 324 (1989); Floyd v.
United States Postal Serv., 105 F.3d 274, 275-77 (6th
Cir. 1997) (overruled on other grounds) (“[T]he only
logical interpretation of the statute is that non-prisoners
have the option to proceed in forma pauperis under
§ 1915(a).”). Under § 1915, an indigent party
may commence a federal court action, without paying required
costs and fees, upon submission of an affidavit asserting
inability “to pay such fees or give security
therefor” and stating “the nature of the action,
defense or appeal and the affiant's belief that the
person is entitled to redress.” 28 U.S.C. §
1915(a)(1). Plaintiff has done so in the instant case, but
the Court's inquiry does not end there.
1915(e)(2) requires careful threshold scrutiny of the
complaint filed by an IFP plaintiff. A court can deny a
qualified plaintiff leave to file IFP or dismiss a case if
the action is clearly frivolous or malicious, fails to state
a claim, or is a claim for money damages against an immune
defendant. 28 U.S.C. § 1915(e)(2)(B). The test for
determining if an action is frivolous or without merit is
whether the plaintiff can make a rational argument on the law
or facts in support of the claim. Neitzke, 490 U.S.
at 325; Corgain v. Miller, 708 F.2d 1241, 1247 (7th
Cir. 1983). An action fails to state a claim 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). When assessing an IFP
motion, a district court should inquire into the merits of
the claims, and if the court finds them to be frivolous, it
should deny leave to proceed IFP. Lucien v. Roegner,
682 F.2d 625, 626 (7th Cir. 1982). The Complaint survives
preliminary review under this standard. Accordingly,
Plaintiff shall be granted leave to proceed IFP, and his
Complaint shall receive further review.
arrived at FCI-Greenville in June of 2016. (Doc. 1, p. 5).
Plaintiff immediately sought protection from the “Latin
Folks.” Id. According to Plaintiff,
“Latin Folks” is a term used to describe “a
litany of street gangs who align together in the federal
prison setting.” Id. Because of an alleged
threat to Plaintiff's life from these individuals,
Plaintiff was initially placed in the Special Housing Unit.
Id. On August 2, 2016, Plaintiff met with Lieutenant
Smith. Id. Plaintiff told Lieutenant Smith that, if
he was released into the general population, he would be
assaulted. Id. Lieutenant Smith disagreed,
indicating that the alleged threat was unverified.
Id. He also told Plaintiff that members of the Latin
Folks stated that they had no intention of harming Plaintiff.
Id. Plaintiff insisted this was just a ruse to get
access to Plaintiff. Id. Plaintiff told Lieutenant
Smith that if he was released into the general population
these individuals would assault and possibly kill him.
Id. He told him he feared for his life and explained
why he feared for his life. Id. Lieutenant Smith
disregarded Plaintiff's concerns. Id. On August
9, 2016, after being placed in the general population,
Plaintiff was “savagely attacked” by the Latin
Folks and suffered serious trauma to his head. Id.
Following the attack, Plaintiff suffered from headaches,
dizziness, and blurred vision. Id. Plaintiff also
claims that, following the attack, “prison medical
personnel” failed to provide necessary medical care and
exhibited deliberate indifference to his injuries.
on the allegations of the Complaint, the Court finds it
convenient to divide the pro se action into the
following counts. The parties and the Court will use these
designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The
designation of these counts does not constitute an opinion
regarding their merit.
Count 1: Lieutenant Smith failed to protect
Plaintiff from an inmate assault on August 9, 2016, by
returning Plaintiff to the general population despite a known
threat to his safety, in violation of the Eighth Amendment.
Count 2: The United States, by and through
the negligence or deliberate indifference of Lieutenant
Smith, is liable under the FTCA for Plaintiff's assault
on August 9, 2016, and for his resulting injuries.
Count 3: Unspecified officials exhibited
deliberate indifference toward Plaintiff's medical needs,
in violation of the Eighth Amendment and Bivens,
when they failed to provide him with adequate medical care
for the injuries he sustained during the assault on August 9,
federal prisoner who seeks relief for the misconduct of
federal agents has three options for obtaining relief in
federal court. He may bring a suit against the United States
under the FTCA for misconduct of federal agents that is
considered tortious under state law. Sisk v. United
States, 756 F.2d 497, 500 n. 4 (7th Cir. 1985) (citing
28 U.S.C. §§ 1346(6), 2680). He may bring a suit
against the agent for a violation of his constitutional
rights under the theory set forth in Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
Id. Or, he may bring both types of ...