Diaz vs. Big Muddy et al

Filing 10

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson, Denying 9 MOTION for Post Conviction Relief filed by Juan Diaz. Defendants FINNY, EVANS, JACKSON and BIG MUDDY CORRECTIONAL CENTER will be DISMISSED from this action with prejudice. Cor rectional Officers VALDEZ, ARNEZ, THORNTON, DUBIN and DAVIES shall be ADDED as parties to this case and Plaintiff's claims against each of these Defendants shall receive further review. Plaintiff's claims against Defendants CHILDERS, CLARK , and SCHULER shall also receive further review.The Clerk of Court shall prepare for Defendants VALDEZ, ARNEZ, THORNTON, DUBIN, DAVIES, CHILDERS, CLARK, and SCHULER : (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge G. Patrick Murphy on 1/10/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JUAN DIAZ, M-01544

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Plaintiff,
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vs.
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CHILDERS, K. FINNY, CLARK,
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EVANS, JACKSON, SCHULER and,
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BIG MUDDY CORRECTIONAL CENTER, )
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Defendants.
)

Case No. 12-cv-1168-GPM

MEMORANDUM AND ORDER
Murphy, District Judge:
Plaintiff, Juan Diaz, is currently incarcerated at Pontiac Correctional Center, (“Pontiac”)
and has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 for alleged
constitutional violations that occurred at Big Muddy Correctional Center (“Big Muddy”).
Plaintiff claims his Eighth Amendment rights were violated by correctional officers who forced
him to fight his cellmates.
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of
the complaint. The Court finds that Plaintiff has articulated a colorable federal claim for cruel
and unusual punishment under the Eighth Amendment.
Plaintiff alleges that between February 24, 2012 and March 20, 2012, Defendants
subjected Plaintiff to various indignities, and forced him to physically fight his cellmates by
threats and encouragement. Defendants Childers, Clark, and Schuler are named in the caption
and referenced in the pleadings as individuals who forced Plaintiff to fight with his cellmates.

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The following five Big Muddy correctional officers allegedly contrived a plan for
Plaintiff to fight with other inmates: Valdez, Arnez, Thornton, Dubis, and Davies. These five
individuals are not named by Plaintiff in the caption of the case, but shall be added as parties.
According to Plaintiff, Defendants coerced Plaintiff into fighting by threatening to murder
Plaintiff’s mother or force Plaintiff to join a gang. Harassment becomes actionable where it
involves a “threat to kill, or to inflict any other physical injury.” Dobbey v. Ill. Dep’t of Corr.,
574 F.3d 443, 446 (7th Cir. 2009). Allegations that a prison officer has provoked or persuaded
other inmates to cause harm to a plaintiff support an inference that the officer attempted to inflict
injury on the plaintiff in violation of the Eighth Amendment. See Irving v. Dormire, 519 F.3d
441, 449 (8th Cir. 2008) (officer’s attempt to have other inmates attack plaintiff may violate
Eighth Amendment, even where the plaintiff was not actually assaulted); Northington v. Jackson,
973 F.2d 1518, 1525 (10th Cir. 1992) (Eighth Amendment claim stated where guard “intended to
do harm to [a prisoner] by inciting inmates to beat him[;]” guard told other inmates that plaintiff
was a snitch).
Plaintiff is currently incarcerated at Pontiac Correctional Center so it is unclear to the
Court when Plaintiff was transferred from Big Muddy to Pontiac. In any event, accepting
Plaintiff’s allegations as true, Plaintiff has articulated a colorable federal claim for cruel and
unusual punishment under the Eighth Amendment.

Plaintiff’s claims against Defendants

Childers, Clark, Schuler, Valdez, Arnez, Thornton, Dubis, and Davies shall receive further
review.
Defendants Finny, Evans, Jackson, and Big Muddy Correctional Center are named in the
caption of the case, but are not referenced anywhere in the pleadings. Merely invoking the name
of a potential defendant is not sufficient to state a claim against that individual. See Collins v.

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Kibort, 143 F.3d 331, 334 (7th Cir. 1998) (“A plaintiff cannot state a claim against a defendant
by including the defendant’s name in the caption.”). The Court is always mindful that it must
give liberal construction to complaints, especially for plaintiffs proceeding pro se. “Federal Rule
of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that
the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). When a defendant is named in the caption,
but not referenced within the body of the complaint, the defendant is not adequately put on
notice of which claims in the complaint, if any, are directed against her.

Accordingly,

Defendants Finny, Evans, Jackson, and Big Muddy are DISMISSED with prejudice.
Pending Motions
Plaintiff’s motion for appointment of counsel (Doc. 4) shall be referred to United States
Magistrate Judge Wilkerson for further consideration.
Plaintiff’s motion for post-conviction relief (Doc. 9) is DENIED without prejudice.
This Court does not have jurisdiction to grant such relief. Plaintiff’s post-conviction remedies lie
in state court.
Disposition
Defendants FINNY, EVANS, JACKSON and BIG MUDDY CORRECTIONAL
CENTER will be DISMISSED from this action with prejudice.
Correctional Officers VALDEZ, ARNEZ, THORNTON, DUBIN and DAVIES shall
be ADDED as parties to this case and Plaintiff’s claims against each of these Defendants shall
receive further review.

Plaintiff’s claims against Defendants CHILDERS, CLARK, and

SCHULER shall also receive further review.

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The Clerk of Court shall prepare for Defendants VALDEZ, ARNEZ, THORNTON,
DUBIN, DAVIES, CHILDERS, CLARK, and SCHULER : (1) Form 5 (Notice of a Lawsuit
and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons).
The Clerk is DIRECTED to mail these forms, a copy of the complaint, and this Memorandum
and Order to each Defendant’s place of employment as identified by Plaintiff. If a Defendant
fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days
from the date the forms were sent, the Clerk shall take appropriate steps to effect formal service
on that Defendant, and the Court will require that Defendant to pay the full costs of formal
service, to the extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if
not known, the Defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on Defendants or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to
include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).

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Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Wilkerson for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Wilkerson
for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under Section 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding
that his application to proceed in forma pauperis has been granted. See 28 U.S.C. §
1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give
security for the same, the applicant and his or her attorney were deemed to have entered into a
stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court,
who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff.
Local Rule 3.1(c)(1)
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party 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 and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).

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IT IS SO ORDERED.
/s/ G. Patr i c k Murphy
G. PATRICK MURPHY
United States District Judge

DATED: January 10, 2013

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