United States District Court, C.D. Illinois
MERIT REVIEW ORDER
A. BAKER UNITED STATES DISTRICT JUDGE
cause is before the Court for merit review of the
Plaintiff's complaint. The Court is required by 28 U.S.C.
§1915A to “screen” the Plaintiff's
complaint, and through such process to identify and dismiss
any legally insufficient claim, or the entire action if
warranted. A claim is legally insufficient if it “(1)
is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or (2) seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C.
Plaintiff, a pro se prisoner, claims his constitutional
rights were violated at the Federal Correctional Institution
in Pekin, Illinois (FCI Pekin). Plaintiff filed his lawsuit
pursuant to Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971) and he has identified a
variety of Defendants including the United States Department
of Justice, the U.S. Attorney's Office, Warden William
Hicks, Administrator of Inmate Appeals Ian Connors, Dentist
Dr. Rivera-Martines, Health Care Administrator Shane Johnson,
and North Central Regional Director Jeffrey Krueger.
says he has a partial denture replacing his two front teeth.
On May 28, 2013, Plaintiff lost his partial denture when he
became violently ill, threw up, and accidentally flushed his
denture down the toilet. Apparently, the incident took place
at a federal correctional facility in Indiana, but Plaintiff
says he has tried repeatedly to obtain a replacement without
success. Plaintiff filed a grievance and completed the
grievance process at FCI Pekin, and the Bureau of Prisons
(BOP) states it will not provide a replacement.
says prison officials claim they can only replace his
dentures if he provides the broken pieces, but Plaintiff says
he does not have any pieces since the entire denture was
flushed. Plaintiff also says he has offered to pay for a
replacement, but BOP will still not approve it. In addition,
BOP has informed Plaintiff that he does not qualify for a
replacement since he has enough surviving teeth to eat a soft
food diet. Plaintiff says neither reason makes sense since he
originally got his dentures in federal prison.
result, Plaintiff says he is unable to eat without pain and
it is very difficult to communicate. Plaintiff says his
problems speaking are magnified by the fact that he is
Hispanic and apparently English is not his first language.
Plaintiff is not seeking damages with the exception of
possible attorney fees. Instead, Plaintiff simply wants
Plaintiff has not mentioned any of the named Defendants in
the body of his complaint and therefore he has not explained
how any Defendant is personally involved in his allegations.
see Potter v Clark, 497 F.2d 1206, 1207 (7th Cir.
1974) (“Where a complaint alleges no specific act or
conduct on the part of the defendant and the complaint is
silent as to the defendant except for his name appearing in
the caption, the complaint is properly dismissed, even under
the liberal construction to be given pro se
complaints.”). “Both Bivens and §
1983 create ‘a cause of action based on personal
liability and predicated upon fault; thus, liability does not
attach unless the individual defendant caused or participated
in a constitutional deprivation.'” Reynolds v.
United States, 2016 WL 51389, at *3 (S.D.Ill. Jan. 5,
2016) quoting Sheik-Abdi v. McClellan, 37 F.3d 1240,
1248 (7th Cir. 1994). Therefore, a Defendant is not liable
simply because he is a supervisor. Gayton v. McCoy,
593 F.3d 610, 622 (7th Cir. 2010). Instead, Plaintiff must
identify or describe the specific individuals who were
responsible for denying his requested replacement denture.
Court notes Plaintiff has provided a copy of his grievance
response signed by Defendant Administrator of Inmate Appeals
Ian Connors. Defendant Connors says the facility dentist
conducted a dental exam in March of 2018 and the dentist
determined Plaintiff did not meet the requirements for a
replacement due to the number of surviving teeth. Therefore,
the Plaintiff can proceed with his claim against Defendant
Dentist Dr. Dr. Rivera-Martines. However, Defendant Connors
cannot be held liable simply because he denied
Plaintiff's grievance. “[R]uling against a prisoner
on an administrative complaint does not cause or contribute
to the violation.” George v Smith, 507 F.3d
605, 609(7th Cir. 2007).
Plaintiff can clarify the specific involvement of any other
named Defendant, he may file a proposed amended complaint
within 21 days of this order. The amended complaint must
stand complete on its own and must not refer to the initial
complaint. For each named Defendant, Plaintiff must briefly
state how they were specifically involved in denying
Plaintiff's request for a replacement denture. For
instance, the United States Department of Justice and the
U.S. Attorney's Office would not be responsible for
providing or approving an individual inmate's dentures.
Court has previously granted Plaintiff's motion for
appointment of counsel. See August 1, 2019 Text
Order. Therefore, the Court will refer this case to the Pro
Bono Litigation Coordinator for recruitment of counsel.
Plaintiff is reminded he has no constitutional right to the
appointment of counsel in this case, and the Court cannot
require an attorney to accept pro bono appointment.
Therefore, the most the Court can do is ask for volunteer
counsel. See Jackson v. County of McLean, 953 F.2d
1070, 1071 (7thCir. 1992).
1) Pursuant to its merit review of the complaint under 28
U.S.C. § 1915A, the Court finds the Plaintiff alleges
FCI Pekin Dentist Dr. Rivera-Martines violated the
Plaintiff's Eighth Amendment rights when the dentist
refused to replaced Plaintiff's partial denture making it
difficult for Plaintiff to eat or speak. The claim is stated
against the Defendant in his individual capacities only. Any
additional claims shall not be included in the case, except
at the Court's discretion on motion by a party for good
cause shown or pursuant to Federal Rule of Civil Procedure
2) This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for Defendant
before filing any motions, in order to give Defendant notice
and an opportunity to respond to those motions. Motions filed
before Defendant's counsel has filed an appearance will
generally be denied as premature. Plaintiff need not submit
any evidence to the Court at this time, unless otherwise
directed by the Court.
3) The Court will attempt service on Defendant by mailing the
Defendant a waiver of service. Defendant has 60 days from
service to file an Answer. If Defendant has not filed an
Answer or appeared through counsel within 90 days of the
entry of this order, Plaintiff may file a motion requesting
the status of service. After Defendant has been served, ...