Aguado v. Godinez et al
Filing
7
MERIT REVIEW OPINION (See Written Opinion): IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO: 1) ATTEMPT SERVICE ON DEFENDANTS PURSUANT TO THE STANDARD PROCEDURES; 2) SET AN INTERNAL COURT DEADLINE 60 DAYS FROM THE ENTRY OF THIS ORDER FOR THE COURT TO CHECK ON THE STATUS OF SERVICE AND ENTER SCHEDULING DEADLINES; 3) SHOW PLAINTIFF'S MOTION FOR THE APPOINTMENT OF COUNSEL 4 AS DENIED; AND 4) SHOW PLAINTIFF'S MOTION FOR STATUS 6 DENIED AS MOOT. LASTLY, IT IS ORDERED THAT I F A DEFENDANT 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. MARHSAL'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). Entered by Judge Sue E. Myerscough on 3/24/2014. (VM, ilcd)
E-FILED
Monday, 24 March, 2014 12:34:25 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
RICHARD AGUADO,
)
)
Plaintiff,
)
)
v.
) No.: 13-3378-SEM
)
)
DIRECTOR GODINEZ, WARDEN
)
TARRY WILLIAMS, JOHN DOE 1, )
and JOHN DOE 2,
)
)
Defendants.
)
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court for a merit review, pursuant to
28 U.S.C. § 1915A, of Plaintiff Richard Aguado’s claims and for
consideration of his motion for appointment of counsel and for
status.
I.
MERIT REVIEW UNDER 28 U.S.C. § 1915(A)
Under 28 U.S.C. § 1915(e)(2) and § 1915A, the Court is
required to carefully screen a complaint filed by a plaintiff who
seeks to proceed in forma pauperis. The Court must dismiss a
complaint, or a portion thereof, if the plaintiff has raised claims that
1
are legally “frivolous or malicious,” that fails to state a claim upon
which relief may be granted, or that seeks monetary relief from a
defendant who is immune from such relief. Id.
The test for determining if an action is frivolous or without
merit is whether the plaintiff can make a rational argument on the
law or facts in support of the claim. Neitzke v. Williams, 490 U.S.
319, 325 (1989). A complaint fails to state a claim for relief if the
complaint does not allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009).
In reviewing the complaint, the Court accepts the factual
allegations as true and liberally construes them in plaintiff’s favor.
Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. July 3, 2013).
Conclusory statements and labels are insufficient. Fed. R. Civ. P. 8;
Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st
Cir. 2012)(holding that, in order to determine if a complaint states a
plausible claim, the court must take non-conclusory, nonspeculative facts as true, draw all reasonable inferences in the
pleader’s favor, and isolate and ignore statements that simply
2
rehash claim elements or offer only legal labels and conclusions).
Instead, sufficient facts must be provided to “state a claim for relief
that is plausible on its face.” Alexander v. United States, 721 F.3d
418, 422 (7th Cir. 2013)(internal quotation omitted).
II.
ANALYSIS
Aguado is an inmate within the Illinois Department of
Corrections. Aguado was housed at the Western Illinois
Correctional Center at all relevant times.
Aguado alleges that, in September 2012, a fellow inmate, Billy
Miles, was placed in his cell to be his new cellmate. Aguado asserts
that Miles was placed in his cell even though Miles is Black and he
is White, even though Miles expressed a dislike of being housed
with white inmates, even though Miles was moved from his previous
cell based upon Miles’ threats to his former cellmate, and even
though Miles threatened to assault Aguado.
On October 14, 2012, Miles physically assaulted Aguado.
Aguado suffered head injuries as a result of the attack and was
hospitalized for his injuries. Aguado was unable to eat or to drink
for four days as a result of the attack. Accordingly, Aguado names
3
as a party Defendant the placement officer John Doe 1 who was
responsible for placing Miles in Aguado’s cell despite knowing of
Miles’ past violence and threats against Aguado.
Aguado also names Correctional Officer John Doe 2 and
Warden Tarry Williams as party Defendants. Aguado claims that,
after being released from the hospital, correctional officer John Doe
2 and Warden Williams housed and placed Aguado in the same area
of the Western Illinois Correctional Center. Aguado alleges that
these Defendants’ actions caused him fear and anxiety that Miles
would attack him again.
Finally, Aguado names S.A. Godinez, the director of the IDOC
as a party Defendant. Aguado claims that he wrote to Godinez
regarding his situation, and Godinez failed to take any action to
protect him. In fact, Aguado alleges that Godinez simply
responded: “[I]t is possible these particular officers were not aware
of the listing.” Accordingly, Aguado has filed this suit alleging that
these Defendants violated his constitutional rights by failing to
protect him from Miles’ attack.
The Court finds that Aguado’s Complaint states a cause of
action upon which relief can be granted breaching their duty to
4
protect him from known risks under the Eighth Amendment. “The
Eighth Amendment’s prohibition against cruel and unusual
punishment requires that prison officials ‘take reasonable measures
to guarantee the safety of the inmates.’ Therefore, those charged
with the high responsibility of running prisons are required, as a
matter of constitutionally imposed duty, to ‘protect prisoners from
violence at the hands of other prisoners.’” Santiago v. Walls, 599
F.3d 749, 758 (7th Cir. 2010)(quoting Farmer v. Brennan, 511 U.S.
825, 832 (1994)).
However, prison officials only have a duty to protect inmates
from known dangers. Butera v. Cottey, 285 F.3d 601, 605 (7th Cir.
2002). “[T]he duty is violated only by deliberate indifference to a
known substantial risk. Prison and jail officials’ [are] not . . .
required to guarantee the detainee’s safety. The existence or
possibility of other better policies which might have been used does
not necessarily mean that the defendant was being deliberately
indifferent.” Smith v. Sangamon County Sheriff’s Dept., 715 F.3d
188, 191 (7th Cir. 2013)(quoting Franke v. City of Chicago, 210 F.3d
779, 782 (7th Cir. 2000)).
5
In the instant case, Aguado has sufficiently alleged that he
complained, warned, and placed Defendants on notice of the threats
made by his cellmate, but they took no action to protect him from
the violent attack at the hands of Miles. Accordingly, the Court
finds that Aguado has sufficiently stated a cause of action against
Defendants for failing to protect him.
Finally, Aguado has filed two pending motions. The first
motion requests a status of his case. This motion is now moot
based upon the Court’s Merit Review Opinion.
The second motion is one requesting the appointment of
counsel. The Court does not possess the authority to require an
attorney to accept pro bono appointments on civil cases such as
this. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). The most that
the Court can do is to ask for volunteer counsel. Jackson v. County
of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992)(holding that it is a
“fundamental premise that indigent civil litigants have no
constitutional or statutory right to be represented by counsel in
federal court.”).
In determining whether the Court should attempt to find an
attorney to voluntarily take a case, “the question is whether the
6
difficulty of the case—factually and legally—exceeds the particular
plaintiff’s capacity as a layperson to coherently present it to the
judge or jury himself . . . . The question is whether the plaintiff
appears competent to litigate his own claims, given their degree of
difficulty, and this includes the tasks that normally attend
litigation: evidence gathering, preparing and responding to motions
and other court filings, and trial.” Pruitt, 503 F.3d at 655 (emphasis
in original). In other words, this inquiry is an individualized one
based upon the record as a whole, the nature of the claims, and the
plaintiff’s ability to pursue his claims through all phases of the
case, including discovery and trial. Navejar v. Iyioloa, 718 F.3d 692,
696 (7th Cir. 2013).
Aguado appears to be literate; he has filed cogent pleadings
with the Court; and his claim has survived a merit review.
Aguado’s claim is not so novel or complex that he cannot litigate it
himself. Aguado has personal knowledge of the facts supporting his
claim and appears cable of cross-examining Defendants regarding
their version of the events. Johnson v. Doughty, 433 F.3d 1001,
1006 (7th Cir. 2006). The test for appointment of counsel is not
whether a lawyer could more effectively handle the case. Pruitt, 503
7
F.3d at 655. The test is whether the litigant is competent to litigate
his own claims. Id. Aguado appears competent to litigate this case
himself, and therefore, the Court denies his motion for appointment
of counsel.
IT IS, THEREFORE, ORDERED that:
1.
Pursuant to the Court’s merit review of the Complaint
under 28 U.S.C. § 1915A, the Court finds that Plaintiff’s Complaint
states a claim against Defendants for failing to protect him in
violation of his Eighth and Fourteenth Amendment rights. Any
additional claim(s) shall not be included in the case except at the
Court’s discretion on a 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.
8
3.
The Court will attempt service on Defendants by mailing
them a waiver of service. Defendants have 60 days from service to
file an Answer. If Defendants have 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 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 Order. In general, an answer
9
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.
Once counsel has appeared for Defendants, Plaintiff need
not send copies of his filings to that Defendant or to that
Defendant’s counsel. Instead, the Clerk will file Plaintiff’s
documents electronically and send notices of electronic filing to
defense counsel. The notices of electronic filing shall constitute
service on Defendants pursuant to Local Rule 5.3. If electronic
service on Defendants is not available, Plaintiff will be notified and
instructed accordingly.
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.
10
IT IS FURTHER ORDERED THAT THE CLERK IS
DIRECTED TO: 1) ATTEMPT SERVICE ON DEFENDANTS
PURSUANT TO THE STANDARD PROCEDURES; 2) SET AN
INTERNAL COURT DEADLINE 60 DAYS FROM THE ENTRY OF
THIS ORDER FOR THE COURT TO CHECK ON THE STATUS OF
SERVICE AND ENTER SCHEDULING DEADLINES; 3) SHOW
PLAINTIFF’S MOTION FOR THE APPOINTMENT OF COUNSEL [4]
AS DENIED; AND 4) SHOW PLAINTIFF’S MOTION FOR STATUS
[6] DENIED AS MOOT.
LASTLY, IT IS ORDERED THAT IF A DEFENDANT 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. MARHSAL’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).
11
ENTER: March 24, 2014
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
12
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?