United States District Court, C.D. Illinois
DENNIS E. NASH, JR., Plaintiff,
JAMES T. DIMAS, et al., Defendants.
BILLY McDADE, UNITED STATES DISTRICT JUDGE.
proceeding pro se and detained at the Rushville
Treatment and Detention Center (“Rushville”),
files a complaint under 42 U.S.C. § 1983, seeking leave
to proceed in forma pauperis (“IFP”)
under 28 U.S.C. §1915 (a)(1). Section 1915 (a)(1)
“is designed to ensure indigent litigants meaningful
access to the federal courts.” Christophel v.
Brandl, No. 08-755, 2008 WL 5429658, at *1 (E.D. Wis.
Dec. 31, 2008) citing Neitzke v. Williams, 490 U.S.
319, 327 (1989). A court must, however, dismiss cases
proceeding in forma pauperis "at any time"
if the action is found frivolous, malicious, or fails to
state a claim, even if part of the filing fee has been paid.
The Court has determined that Plaintiff reaches the threshold
poverty analysis and now reviews the complaint to determine
whether it is frivolous, fails to state a claim, or seeks
monetary relief against a defendant immune from suit. 28
reviewing the complaint, the Court accepts the factual
allegations as true, liberally construing them in
Plaintiff's favor. Turley v. Rednour, 729 F.3d
645, 649 (7th Cir. 2013). However, conclusory statements and
labels are insufficient. Enough facts must be provided to
"'state a claim for relief that is plausible on its
face.'" Alexander v. U.S., 721 F.3d 418,
422 (7th Cir. 2013) (quoted cite omitted). While the pleading
standard does not require “detailed factual
allegations, ” it requires “more than an
accusation.” Wilson v. Ryker, 451 Fed.Appx.
588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
is civilly detained in the Rushville Treatment and Detention
Center pursuant to the Illinois Sexually Violent Persons
Commitment Act, 725 ILCS 207/1, et seq. Plaintiff
alleges that Defendants James Dimas, Secretary of the
Illinois Department of Human Services (“IDHS”);
IDHS Security Director McCurry; Assistant Program Director
Kunkel; Clinical Therapist Dr. Lodge; and Security Therapy
Aids Lucas and Pennock were deliberately indifferent to his
safety, resulting in his being sexually assaulted by his
unidentified date, Plaintiff was assigned a new roommate,
Daniel Bess. Plaintiff claims that on July 23, 2018, while he
was heavily medicated and sleepy, Mr. Bess sexually assaulted
him in their cell. Plaintiff claims that he reported the
assault to his clinical therapist but does not indicate that
he filed an incident report or disclosed it to anyone else.
Plaintiff thereafter filed an emergency request for a room
change but does not indicate that he disclosed the reason for
the request. His pleading in this regard is very unclear as
he alleges without further explanation that “coworkers
put words in my mouth and that's not what I said.”
not appear that Defendants were aware of the incident and the
request was denied. Plaintiff claims, in fact, that
Defendants threatened him with disciplinary action for
refusing housing. Plaintiff grieved the matter and asserts
that an unidentified individual allegedly responded,
indicating that Plaintiff had never reported the sexual
assault by his roommate.
noted, Plaintiff pleads only that he reported the incident to
his therapist. The Court frankly does not know whether the
therapist would have been bound to report the sexual assault
or would, for confidentiality reasons, have been prohibited
from doing so. If the Defendants did not know of the sexual
assault, however, they could not have been deliberately
indifferent in failing to move Plaintiff or threatening him
with discipline for refusing housing.
also claims that Defendants were deliberately indifferent as
they should not have placed him with Mr. Bess to begin with.
Plaintiff asserts that Defendants failed to perform a
background check of Mr. Bess prior to the placement. It is
not clear what Plaintiff would have expected the background
check to reveal as both he and Mr. Bess are clearly sex
offenders as evidenced by their detention at Rushville. If
Mr. Bess had a prior history of sexual assault of his
roommates, Plaintiff fails to allege it. Officials will not
be found liable for failing to protect those in their charge
unless they “knew the inmate faced a ‘substantial
risk of serious harm' and ‘disregard[ed] that risk
by failing to take reasonable measures to abate
it.'” Grieveson v. Anderson, 538 F.3d 763,
777 (7th Cir. 2008) (emphasis in original).
there is nothing to suggest that Defendants had particular
knowledge that Mr. Bess would assault Plaintiff. “In
failure to protect cases, ‘[a] prisoner normally proves
actual knowledge of impending harm by showing that he
complained to prison officials about a specific threat to his
safety.'” Gevas v. McLaughlin, 798 F.3d
475, 480 (7th Cir. 2015). “[A[ complaint that
identifies a specific, credible, and imminent risk of serious
harm and identifies the prospective assailant typically will
support an inference that the official to whom the complaint
was communicated had actual knowledge of the risk.”
Id. at 481. Plaintiff makes no such allegations
also asserts a claim that Defendants failed to follow
protocols and guidelines, not particularly identified. He
alleges, further, that staff failed to do regular,
15-30-minute checks of the cells but does not state that this
was required or that it would have prevented the assault.
Regardless, the failure to follow internal protocols or
rules, without more, is not enough to sustain a
constitutional violation. See Estate of Simpson v.
Gorbett, 863 F.3d 740, 746 (7th Cir. 2017); Thomas
v. City of Chicago, 472 F.3d 444 (7th Cir. 2006)
(“§ 1983 protects plaintiffs from constitutional
violations, not violations of state laws or, in this case,
departmental regulations and police practices.”)
claims against Defendant Director Dimas appears to be based
only on his position as the IDHS Director. There is, however,
no respondeat superior or liability under § 1983 as
defendants are only liable for their own wrongdoing.
Duckworth v. Franzen, 780 F.2d 645, 650 (7th Cir.
1985). “To recover for damages under 42 U.S.C. §
1983, a plaintiff must establish defendant's personal
responsibility for the claimed deprivation of a
constitutional right.” As Plaintiff fails to allege any
personal participation by Defendant Dimas, he is DISMISSED.
IS THEREFORE ORDERED:
1. Plaintiff's motion for leave to appeal IFP  is
DENIED as the complaint is dismissed for failure to state a
claim pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff will have
30 days from the entry of this order in which to replead. The
pleading is to be titled “amended complaint” and
is to stand complete, on its own without reference to a prior
pleading. Failure to file an amended complaint will result in