United States District Court, S.D. Illinois
TARIQ K. BILAL, and CARLOS H. GARCIA, #M41479, Plaintiffs,
LAWRENCE CORRECTIONAL CENTER, and SAMER HERNANDEZ, Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL, CHIEF U.S. DISTRICT JUDGE
Carlos Garcia, an inmate of the Illinois Department of
Corrections who is currently incarcerated at Pontiac
Correctional Center, and Plaintiff Tariq Bilal bring this
civil rights action pro se pursuant to 42 U.S.C.
§ 1983 alleging the rape of Plaintiff Garcia by his
cellmate while at Lawrence Correctional Center. (Doc. 1).
Plaintiffs seek money damages.
17, 2019, the Court issued an order advising Plaintiffs of
the consequences of bringing claims jointly in a single
lawsuit, including their filing fee obligations, and giving
Plaintiff Bilal an opportunity to withdraw from the case or
sever his claims into an individual action. (Doc. 6).
Plaintiff Bilal notified the Court prior to the deadline of
August 16, 2019, that he wishes to continue in this lawsuit.
(Doc. 7, p. 5). He also has filed two Motions to Proceed
in forma pauperis (“IFP”) jointly with
Plaintiff Garcia. (Docs. 3 and 9). At the time he
filed this Complaint, Plaintiff Bilal was living in a
personal residence and states that he is the cousin of
Plaintiff Garcia (Doc. 7, p. 4). As such, Plaintiff Bilal
does not meet the statutory definition of a
“prisoner” for the purposes of the IFP statute.
See 28 U.S.C. § 1915A. The Court may, however,
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) by submitting “an affidavit that
includes a statement of all assets [he] possesses [showing]
that the person is unable to pay such fees or give security
therefor[, ]” and the Complaint survives review under
28 U.S.C. § 1915(e)(2).
because Plaintiff Garcia is a prisoner, the Court is required
to review the Complaint under 28 U.S.C. § 1915A. Under
both statutes, any portion of the Complaint that is legally
frivolous, malicious, fails to state a claim upon which
relief may be granted, or requests money damages from a
defendant who by law is immune from such relief must be
dismissed. 28 U.S.C. § 1915A(b); 28 U.S.C. §
1915(e)(2). At this juncture, the factual allegations of the
pro se Complaint are to be liberally construed.
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816,
821 (7th Cir. 2009).
Plaintiffs make the following allegations: On August 19,
2017, Plaintiff Garcia's cellmate, Hernandez, a gang
member of the Ambro's Latin Folks Nation, received a
written note from a member of another gang, the Spanish Cobra
Folks Nation. (Doc. 1, p.7). Hernandez flushed the note down
the toilet and started acting weird towards Garcia. A while
later, while Garcia was reading his book, Hernandez attacked
and raped him. During the attack Hernandez accused Garcia of
snitching on the Ambro's Latin Folks Nation and
threatened to kill him. Following the rape, Garcia pressed
the panic button several times, but no one came. Garcia had
to wait until 11:00 p.m. to be able to talk to a corrections
officer. Garcia told the officer that he needed a crisis team
and that he was going to kill himself so that he could get
out of the cell and report the incident. Garcia was taken to
a hospital in Indiana where a rape kit was performed.
Id. at p. 8. He then was placed on suicide watch
because he wanted to kill himself.
Plaintiffs have failed to associate their claims with a
proper defendant pursuant to Section 1983, the Complaint must
be dismissed for failure to state a claim upon which relief
may be granted.
state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988)
(citations omitted). While only individuals can be sued under
Section 1983 for money damages, neither the Constitution nor
other federal law provides for a tort cause of action between
private citizens; these causes of action are creatures of
Plaintiff Garcia's former cellmate Hernandez, as a
private citizen, is an improper defendant. Plaintiffs have
not indicated that Hernandez was acting under color of law
when he attacked and raped Plaintiff Garcia. As such,
Plaintiffs' only avenue for relief based on the claims
against Hernandez is in state court. See Pasiewicz v.
Lake County Forest Preserve Dist., 270 F.3d 520, 526
(7th Cir.2001) (“The federal government is not the
enforcer of state law”).
Plaintiffs also cannot pursue a request for money damages
against Lawrence Correctional Center
(“Lawrence”). Lawrence is not a
“person” within the meaning of the Civil Rights
Act, and is therefore not subject to a Section 1983 lawsuit.
See Will v. Mich. Dep't of State Police, 491
U.S. 58, 71 (1989).
the Court notes that it appears that Plaintiff Bilal does not
have standing pursuant to Article III of the Constitution to
bring the claims alleged in the Complaint. “When
considering whether a party satisfies the constitutional
requirement of standing, the court must determine that
‘the plaintiff himself has suffered some threatened or
actual injury resulting from the putatively illegal
action.'” Massey v. Helman, 196 F.3d 727,
739 (7th Cir. 1999) (citations omitted). As currently
drafted, the Complaint only includes allegations affecting
Plaintiff Garcia and does not explain how Plaintiff
Bilal's rights were violated. Although Plaintiff Bilal
states that he is invested in the case and is helping
Plaintiff Garcia through the judicial process (Doc. 7, p. 4),
he is only entitled to assert his own rights. Massey v.
Helman, 196 F.3d 727, 739-40 (7th Cir. 1999). If, in
fact, Plaintiff Bilal is only attempting to bring claims on
behalf of Plaintiff Garcia, he has no standing to do so.
Plaintiffs will be given an opportunity to re-plead their
claims in an amended complaint if they wish to proceed with
this case. A successful complaint generally alleges
“the who, what, when, where, and how…”
DiLeo v. Ernst & Young,901 F.2d 624, 627 (7th
Cir. 1990). When preparing the amended complaint, Plaintiffs
should identify each defendant in the case caption and set
forth sufficient allegations against each ...