Atkins v. Vandalia Correctional Center et al

Filing 11

ORDER DISMISSING CASE for failure to state a claim upon which relief may be granted. The dismissal of COUNT 1 is without prejudice. COUNT 2 is dismissed with prejudice. Plaintiff is advised that the dismissal of this action shall count as one of hi s three allotted "strikes" under the provisions of 28 U.S.C. § 1915(g). Plaintiff is ORDERED to submit a new motion for IFP within 21 days of the entry of this Order (on or before October 3, 2012). The Clerk is DIRECTED to mail Plaintiff a blank form motion and affidavit to proceed without prepaying fees or costs. Leave to proceed IFP is GRANTED. Signed by Judge J. Phil Gilbert on 9/12/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARVIN ATKINS, #R-33561,
Plaintiff,
vs.
VANDALIA CORRECTIONAL
CENTER and THE ILLINOIS
DEPARTMENT OF CORRECTIONS,
Defendants.

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CASE NO. 12-cv-951-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, who was recently discharged from the Vandalia Correctional Center
(“Vandalia”) on mandatory supervised release (Doc. 5), has brought this pro se civil rights action
pursuant to 42 U.S.C. § 1983. His claims arose while he was confined in Vandalia, and he filed
this action while he was still incarcerated. Plaintiff claims that the Defendants’ failure to provide
him with addiction treatment was a breach of contract and violated the Eighth Amendment.
More specifically, Plaintiff claims that on September 30, 2011, he was transferred from the Cook
County Department of Corrections to Stateville Correctional Center (“Stateville”) in order to
serve a three-year sentence in the custody of the Illinois Department of Corrections (“IDOC”)
(Doc. 1, p. 4). During the IDOC intake processing at Stateville, a counselor determined he was
eligible to receive substance abuse treatment while in IDOC custody. Plaintiff then signed an
“Agreement to Enter into Substance Abuse Treatment” (Doc. 1, pp. 5, 17). On October 13, 2011,
he was transferred from Stateville to Vandalia. Soon thereafter, he learned that substance abuse

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treatment was not available at Vandalia. He immediately sought a transfer to an institution
where treatment could be provided, and filed grievances over the issue.
While at Vandalia, Plaintiff learned that his sentencing judge had neglected to enter a
stipulated court order recommending substance abuse treatment (Doc. 1, p. 7-8). He moved to
withdraw his guilty plea, and on November 17, 2011, was resentenced with the court
recommendation he had sought (Doc. 1, p. 29). However, Plaintiff was never provided with any
substance abuse treatment for the duration of his sentence. He was released on July 25, 2012.
Plaintiff seeks compensatory damages for the breach of contract and for violation of the Eighth
Amendment.
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of
the complaint. For purposes of this review, the Court finds it convenient to divide the pro se
action into two counts. After fully considering the allegations in Plaintiff’s complaint, the Court
concludes that this action is subject to summary dismissal.
Count 1 - Breach of Contract
In order to state a claim under 42 U.S.C. § 1983, a complaint must describe a 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). Here, Plaintiff claims that Defendants breached their contract with him when they
refused to place him in a prison offering the substance abuse treatment he agreed in writing to
undergo. Whether or not this agreement would be considered a binding contract, it is clear that
an action for breach of contract belongs in state court. Seventh Circuit case law has long
established that, even where a unit of state or local government has breached a contract, such a

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breach does not give rise to a federal constitutional claim. Taake v. Cnty. of Monroe, 530 F.3d
538, 540-41 (7th Cir. 2008); Garcia v. Kankakee Cnty. Hous. Auth., 279 F.3d 532, 535 (7th Cir.
2002); Sudeikis v. Chicago Transit Auth., 774 F.2d 766, 770 (7th Cir. 1985). Contract law is a
creature of state law, not federal law. See IFC Credit Corp. v. United Bus. & Indus. Fed. Credit
Union, 512 F.3d 989, 991-92 (7th Cir.2007). Accordingly, Plaintiff’s breach of contract claim
shall be dismissed without prejudice, so that it may be brought in state court if Plaintiff chooses
to do so.
Count 2 - Eighth Amendment
Plaintiff also asserts that the failure to provide him with the agreed-upon substance abuse
treatment violated the Eighth Amendment. However, he fails to explain further how this
constitutional provision may be implicated. Assuming that Plaintiff means to contend that
Defendants were deliberately indifferent to a serious medical need, the complaint fails to state a
§ 1983 claim for an Eighth Amendment violation. “A prisoner’s claim for deliberate indifference
must establish (1) an objectively serious medical condition; and (2) an official’s deliberate
indifference to that condition. Deliberate indifference is proven by demonstrating that a prison
official knows of a substantial risk of harm to an inmate and either acts or fails to act in disregard
of that risk.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (internal citations and
quotations omitted).
To meet the first component of a deliberate indifference claim, Plaintiff must allege a
medical condition that is “objectively, sufficiently serious;” that is, “one that has been diagnosed
by a physician as mandating treatment or one that is so obvious that even a lay person would
perceive the need for a doctor's attention.” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)
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(citations omitted). Plaintiff’s “medical condition” is that he apparently has a history of
substance abuse, which presumably contributed to his criminal behavior. While acute
withdrawal from drugs can be considered a serious medical condition, see Foelker v. Outagamie
Cnty., 394 F.3d 510, 512-13 (7th Cir. 2005), Plaintiff gives no indication that he was suffering
from any physical or mental symptoms that required treatment at any time during his
incarceration. Further, he does not describe any harm to him as a result of the failure to provide
substance abuse treatment. A conclusion by a social worker that an inmate could benefit from
participation in a substance abuse program is not the same as a physician’s diagnosis that medical
treatment is required. Thus, Plaintiff’s allegations are not sufficient to show that he suffered
from an objectively serious medical condition.
Additionally, Plaintiff must allege the subjective component of a deliberate indifference
claim; that is, officials knew of and disregarded an excessive risk to his health. Greeno, 414 F.3d
at 653 (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994). The Eighth Amendment does not
give prisoners entitlement to “demand specific care” or “the best care possible,” but only requires
“reasonable measures to meet a substantial risk of serious harm.” Forbes v. Edgar, 112 F.3d
262, 267 (7th Cir. 1997). As noted above, the complaint fails to indicate that Plaintiff faced any
risk of harm. Moreover, he never mentions any individual prison official who had the requisite
knowledge of an excessive health risk to Plaintiff, and then acted or failed to act in disregard of
such a risk. The only named Defendants are the Vandalia Correctional Center and the Illinois
Department of Corrections, both agencies of the state. Neither of these is a proper Defendant in a
deliberate indifference claim. The Supreme Court has held that “neither a State nor its officials
acting in their official capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police,

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491 U.S. 58, 71 (1989). See also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001)
(Eleventh Amendment bars suits against states in federal court for money damages); Billman v.
Ind. Dep’t of Corr., 56 F.3d 785, 788 (7th Cir. 1995) (state Department of Corrections is immune
from suit by virtue of Eleventh Amendment).
Plaintiff has failed to state a constitutional claim, either for the alleged breach of contract,
or for deliberate indifference to a serious medical need. Accordingly, this action shall be
dismissed.
Finally, Plaintiff failed to disclose his litigation history in his complaint, despite the clear
instructions to list all lawsuits he has filed (Doc. 1, p. 3).1 That omission alone would be a
reason to dismiss this case. The Court relies on a party’s litigation history listed in the complaint
to adhere to the three-strike requirement of 28 U.S.C. § 1915(g), and thus there is a need for
reliable information about prior litigation. As a result, where a party fails to provide accurate
litigation history, the Court may appropriately dismiss the action for providing fraudulent
information to the Court. Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011) (dismissal
appropriate where Court-issued complaint form clearly warned Plaintiff that failure to provide
litigation history would result in dismissal). Should Plaintiff file any action in the future without
complete disclosure of his previous lawsuits, including any strikes, his case may be summarily
dismissed.
Pending motion
Plaintiff’s motion for leave to proceed in forma pauperis (“IFP”) (Doc. 3) was filed while
1

In addition to the case that resulted in Plaintiff’s first “strike” (Atkins v. State of Illinois, No. 10-cv-6986
(N.D. Ill., filed Oct. 29, 2010)), Plaintiff filed two previous actions on July 3, 2012: Atkins v. Vandalia
Corr. Ctr., S.D. Ill. No. 12-955-MJR, and Atkins v. Vandalia Corr. Ctr., S.D. Ill. No. 12-943-GPM. He
failed to disclose any of these cases in the instant complaint.
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he was still an inmate. Based on his motion and affidavit, the Court finds that he is indigent and
unable to pay the full filing fee in advance; therefore, leave to proceed IFP is GRANTED.
However, Plaintiff failed to provide the full 6 months of his prison trust fund account statements,
for the period of January 10, 2012, through July 10, 2012. The Clerk has requested the required
statements from the Trust Fund Officer at Vandalia. Following the receipt of that information, an
order shall issue for the payment of the initial partial filing fee as outlined in 28 U.S.C.
§ 1915(b)(1).
Because Plaintiff was a prisoner when he filed this action, he is obligated to pay the entire
filing fee under § 1915(b)(1), which provides: “if a prisoner brings a civil action or files an
appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee.”
See Robbins v. Switzer, 104 F.3d 895, 897 (7th Cir. 1997). Section 1915(b)(1) further establishes
that a prisoner must prepay the filing fee in accordance with a statutory schedule based upon
transactions in his prison trust fund account. Plaintiff’s current released status does not change
the fact that he was a prisoner when he brought this case. See Robbins, 104 F.3d at 898. He “is
liable for the whole fee (just like everyone else who proceeds IFP), and must prepay according to
the statutory schedule.” Id.
Although Plaintiff remains obligated to pay the full filing fee, the collection mechanism
contained in § 1915(b)(2) is inapplicable because Plaintiff is no longer incarcerated. In order to
enable the Court to evaluate Plaintiff’s current resources and determine whether to defer
collection of the remainder of the unpaid fee, Plaintiff is ORDERED to submit a new motion
for IFP within 21 days of the entry of this Order (on or before October 3, 2012). This motion
shall be mailed to: Clerk of the Court, United States District Court for the Southern District of
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Illinois, P.O. Box 249, East St. Louis, Illinois 62202. The Clerk is DIRECTED to mail Plaintiff
a blank form motion and affidavit to proceed without prepaying fees or costs.
Plaintiff is further ORDERED to inform this Court if he is returned to the custody of
the Illinois Department of Corrections or any county or municipal jail, by filing a notice of
change of address within 7 days of entering such custody. Should Plaintiff be incarcerated in the
future, the collection mechanism established under § 1915(b)(2) shall apply to the payment
obligation that Plaintiff incurred by filing this action.
Plaintiff’s motion for appointment of counsel (Doc. 4) is DENIED AS MOOT.
Disposition
For the reasons stated above, this action is DISMISSED for failure to state a claim upon
which relief may be granted. The dismissal of COUNT 1 is without prejudice. COUNT 2 is
dismissed with prejudice.
Plaintiff is advised that the dismissal of this action shall count as one of his three allotted
“strikes” under the provisions of 28 U.S.C. § 1915(g). A dismissal without prejudice may count
as a strike, so long as the dismissal is made because the action is frivolous, malicious, or fails to
state a claim. See Paul v. Marberry, 658 F.3d 702, 704 (7th Cir. 2011); Evans v. Ill. Dep’t of
Corr. 150 F.3d 810, 811 (7th Cir. 1998). Because two of Plaintiff’s previously-filed lawsuits2
have also been dismissed pursuant to § 1915A for failure to state a claim upon which relief may
be granted, the dismissal of this case gives Plaintiff his third “strike.” Accordingly, if Plaintiff
seeks to file any future civil action while he is a prisoner, he will no longer be eligible to pay a
2

Atkins v. State of Illinois, No. 10-cv-6986 (N.D. Ill., filed Oct. 29, 2010) (strike 1, dismissed Dec. 21,
2010, for failure to state a claim upon which relief may be granted); Atkins v.Vandalia Corr. Ctr., No. 12cv-955-MJR (S.D. Ill., filed July 3, 2012) (strike 2, dismissed Sept. 10, 2012, for failure to state a claim).
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filing fee in installments using the in forma pauperis provisions of § 1915(a) and (b), unless he
can establish that he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
If Plaintiff cannot make the necessary showing of imminent physical danger, he shall be required
to pre-pay the full filing fee for any future lawsuit he may file while incarcerated, or face
dismissal of the suit.
Plaintiff’s obligation to pay the filing fee for this action was incurred at the time the
action was filed, thus the filing fee of $350 remains due and payable regardless of the dismissal
of the case. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court informed of any change in his address; the Court will not independently investigate his
whereabouts. This shall be done in writing and not later than 7 days after a transfer or other
change in address occurs. Failure to comply with this order will cause a delay in the transmission
of court documents.
IT IS SO ORDERED.
DATED: September 12, 2012
s/ J. Phil Gilbert
United States District Judge

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