Ramirez v. Godinez et al
Filing
8
MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 11/1/2013. SEE WRITTEN OPINION. The clerk is directed to add Tarry Williams (Warden of Western Illinois Correctional Center) as a Defendant and to attempt service on Defendants pursuant to the standard procedures. (2) Plaintiff's Motion to add detail to his complaint is denied as unnecessary (d/e 6 ); Plaintiffs motion to supplement his motion for counsel is granted (d/e 7 ).(DM, ilcd)
E-FILED
Friday, 01 November, 2013 12:29:41 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DARWIN RAMIREZ,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
S.A. GODINEZ, et al.,
Defendants.
13-CV-3362
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and incarcerated in Western Illinois
Correctional Center, seeks leave to proceed in forma pauperis.
The case is before the Court for a merit review pursuant to 28
U.S.C. § 1915A. In reviewing the Complaint, the Court accepts the
factual allegations as true, liberally construing them in Plaintiff's
favor. Turley v. Rednour, --- F.3d ---, 2013 WL 3336713 * 2 (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).
Page 1 of 8
Plaintiff asserts that he is from Honduras and knows very little
English. He alleges that Defendants have failed to protect Plaintiff
from a serious risk of substantial harm of attack by other inmates,
due to the nature of Plaintiff's crime (predatory criminal sexual
assault of a child), Plaintiff's sexual orientation (homosexual), and
Plaintiff's slight stature. Plaintiff maintains that his roommates
have threatened to beat him, have actually beat him, and have
extorted money from him. Plaintiff contends that IDOC needs a
separate wing or protective custody placement for vulnerable
inmates like himself.
Plaintiff also challenges his placement in segregation as
punishment for refusing to cell with an inmate who presented a
serious risk of substantial harm to Plaintiff.
Lastly, Plaintiff alleges that Defendant Dr. Hinton has been
deliberately indifferent to Plaintiff's serious mental health needs by
failing to provide a Spanish-speaking mental health professional
who can communicate with Plaintiff. Plaintiff does not identify what
his serious mental health need is.
The Court concludes that Plaintiff states arguable Eighth
Amendment claims for deliberate indifference to Plaintiff's serious
Page 2 of 8
mental health needs and to a substantial risk of serious harm to
Plaintiff from other inmates. The current Warden of Western will be
added as a Defendant, because Plaintiff seeks injunctive relief.
Plaintiff also pursues a claim under the Prison Rape Elimination
Act, but no private cause of action exists under that Act. Rivera v.
Drake, 2010 WL 1172602 (E.D. Wis. 2010)(unpublished)("Nothing
in the Act suggests that it was intended to create a private cause of
action, and nothing suggests that Congress intended to override the
state's Eleventh Amendment immunity.") Plaintiff also cites the
United Nation's Universal Declaration of Human Rights, but that
also offers no private right of action. Sosa v. Alvarez–Machain, 542
U.S. 692, 734, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (the
Universal Declaration of Human Rights "does not of its own force
impose obligations as a matter of international law.").
Plaintiff is advised that he must identify the names of his
"Doe" Defendants before those Defendants can be served. If Plaintiff
cannot discover the names on his own, then Plaintiff should try to
discover the names from Defense counsel, after Defense counsel
has filed an appearance. Failure to timely identify Doe Defendants
Page 3 of 8
without good cause will result in the dismissal of the Doe
Defendants, without prejudice.
IT IS THEREFORE ORDERED:
1)
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states Eighth
Amendment claims for deliberate indifference to his serious medical
needs and deliberate indifference to a substantial risk of serious
harm.
This case proceeds solely on the claims identified in this
paragraph. 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 15.
2)
This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for Defendants before
filing any motions, in order to give Defendants notice and an
opportunity to respond to those motions. Motions filed before
Defendants' 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.
Page 4 of 8
3)
The Court will attempt service on Defendants by mailing
each Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 days of the
entry of this order, Plaintiff may file a motion requesting the status
of service. After Defendants have been served, the Court will enter
an order setting discovery and dispositive motion deadlines.
4)
With respect to a Defendant who no longer works at the
address provided by Plaintiff, the entity for whom that Defendant
worked while at that address shall provide to the Clerk said
Defendant's current work address, or, if not known, said
Defendant's forwarding address. This information shall be used
only for effectuating service. Documentation of forwarding
addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
5)
Defendants shall file an answer within 60 days of the
date the waiver is sent by the Clerk. A motion to dismiss is not an
answer. The answer should include all defenses appropriate under
the Federal Rules. The answer and subsequent pleadings shall be
to the issues and claims stated in this Opinion. In general, an
Page 5 of 8
answer sets forth Defendants' positions. The Court does not rule
on the merits of those positions unless and until a motion is filed by
Defendants. Therefore, no response to the answer is necessary or
will be considered.
6)
This District uses electronic filing, which means that,
after Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
filed with the Clerk. Plaintiff must mail his discovery requests and
responses directly to Defendants' counsel. Discovery requests or
responses sent to the Clerk will be returned unfiled, unless they are
attached to and the subject of a motion to compel. Discovery does
not begin until Defense counsel has filed an appearance and the
Court has entered a scheduling order, which will explain the
discovery process in more detail.
Page 6 of 8
7)
Counsel for Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the deposition.
8)
Plaintiff shall immediately notify the Court, in writing, of
any change in his mailing address and telephone number.
Plaintiff's failure to notify the Court of a change in mailing address
or phone number will result in dismissal of this lawsuit, with
prejudice.
9)
If a Defendants fails to sign and return a waiver of service
to the clerk within 30 days after the waiver is sent, the Court
will take appropriate steps to effect formal service through the
U.S. Marshal's service on that Defendant and will require that
Defendant to pay the full costs of formal service pursuant to
Federal Rule of Civil Procedure 4(d)(2).
IT IS FURTHER ORDERED: (1) The clerk is directed to add
Tarry Williams (Warden of Western Illinois Correctional Center)
as a Defendant and to attempt service on Defendants pursuant
to the standard procedures. (2) Plaintiff’s Motion to add detail
to his complaint is denied as unnecessary (d/e [6]); Plaintiff’s
Page 7 of 8
motion to supplement his motion for counsel is granted (d/e
[7]).
ENTERED: 11/1/2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 8 of 8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?