United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL, CHIEF U.S. DISTRICT JUDGE.
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
seeks leave to proceed in forma pauperis
(“IFP”). (Doc. 4). Because Plaintiff was not
incarcerated or detained at the time he filed his Complaint,
does not meet the statutory definition of
“prisoner” 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.
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.
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).
on the allegations of the Complaint, the Court designates the
Count 1: Eighth Amendment failure to protect claim
Count 2: Fourteenth Amendment property loss
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
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.