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Cordero v. Vienna Correctional Center

United States District Court, S.D. Illinois

July 26, 2019

THOMAS CORDERO, Plaintiff,
v.
VIENNA CORRECTIONAL CENTER, JOHN DOE #1, JOHN DOE #2, and JOHN DOE #3, Defendants.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL, CHIEF U.S. DISTRICT JUDGE.

         Plaintiff Thomas Cordero, a former inmate of the Illinois Department of Corrections (“IDOC”), brings this action pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional rights that allegedly occurred while he was incarcerated at Vienna Correctional Center (“Vienna”). He asserts claims for failure to protect and missing property. (Doc. 1). He seeks monetary dam ages. (Id.).

         Plaintiff seeks leave to proceed in forma pauperis (“IFP”). (Doc. 4). Because Plaintiff was not incarcerated or detained at the time he filed his Complaint, [1] he does not meet the statutory definition of “prisoner”[2] for purposes of the Prison Litigation Reform Act (“PLRA”) or the IFP statute. See 28 U.S.C. § 1915(h). However, the Court may allow a civil case to proceed without prepayment of fees if the litigant demonstrates that he is indigent under 28 U.S.C. § 1915(a)(1), and Plaintiff has made that showing. (Docs. 4, 11). That said, the Court must also consider the merits of his claims under 28 U.S.C. § 1915(e)(2) and deny leave to proceed IFP if the claims are frivolous, malicious, fail to state a claim on which relief may be granted, or if Plaintiff seeks monetary relief against a defendant who is immune from such relief.

         The Complaint

         Plaintiff makes the following allegations in his Complaint: On October 14, 2018, an altercation involving several inmates erupted on 1-B housing unit. (Doc. 1, p. 4). Inmate Teague was swinging a hot pot at other inmates. (Id.). Officers arrived and contained the inmates that were involved. (Id.). Two officers remained in the hallway. (Id.). The hot pot broke, and Inmate Teague grabbed a broom. (Id.). As Plaintiff walked to his cell, he was struck in the forehead. (Id.). He continued walking to his cell, and Inmate Teague pursued him. (Id.). Both officers stood and watched and did not attempt to stop Inmate Teague. (Id.).

         After his release from segregation, Plaintiff informed “these officers” that several items from his personal property was missing including a watch, head phones and miscellaneous food. (Id., p. 5).

         Based on the allegations of the Complaint, the Court designates the following counts:

Count 1: Eighth Amendment failure to protect claim against Defendants.
Count 2: Fourteenth Amendment property loss claim.

         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 designations do not constitute an opinion regarding their merit. Any other intended claim that has not been recognized by the Court is considered dismissed without prejudice as inadequately pleaded under the Twombly pleading standard.[3]

         Preliminary Dismissal

         The Supreme Court has held that “neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). See also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001) (Eleventh Amendment bars suits against states in federal court for money damages); Billman v. Ind. Dep't of Corr., 56 F.3d 785, 788 (7th Cir. 1995) (state Department of Corrections is immune from suit by virtue of Eleventh Amendment); Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 427 (7th Cir. 1991) (same); Santiago v. Lane, 894 F.2d 218, 220 n. 3 (7th Cir. 1990) (same). Therefore, Plaintiff cannot maintain suit against Vienna Correctional Center which is a division of the Illinois Department of Corrections; it is dismissed from this action with prejudice.

         Discussion

         Coun ...


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