Mitchell v. Vienna Correctional Center

Filing 6

IT IS HEREBY ORDERED that Plaintiff's complaint (Doc. 1 ) is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. Defendant VIENNA CORRECTIONAL CENTER is DISMISSED from this action with prejudice.IT IS FURT HER ORDERED that in order to proceed with this action, Plaintiff SHALL submit his First Amended Complaint within 35 days of the entry of this order. In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form. (Amended Pleadings due by 8/29/2013). Signed by Judge Michael J. Reagan on 7/24/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENNETH L. MITCHELL, # B-88904,

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Plaintiff,
vs.
VIENNA CORRECTIONAL CENTER,
Defendant.

Case No. 13-cv-627-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff is currently incarcerated at Vienna Correctional Center (“Vienna”),
where he is serving a two-year sentence for aggravated DUI. He brings this pro se civil rights
action pursuant to 42 U.S.C. § 1983, seeking redress for violations of his rights which he claims
have occurred during his confinement at Vienna.
Plaintiff’s entire statement of his claim is as follows:
On May 29th 2013: 42 U.S.C. § 241, 42 U.S.C. § 242, 42 U.S.C. § 1997, 11., 42
U.S.C. § 1990, Ch. 2 § 2.7[.] I was sent to Vienna Correctional Center on May
29th 2013 to building 19 2nd floor to June 7th 2013 3rd floor Bed 32A[.] I’m
under Imminent danger Gross Negligence. “Abestoes,” [sic] Punitive damages,
Verosity, perpensity [sic]. Mental Anguish. Torque claim, Criminal Malfeasance
with harmfull intent, Reconstruction-Era law, My due process 14th/5th
Amendments - My C.R.I.P. Act title 6 civil Acts are violated.
(Doc. 1, p. 5).
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the
complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief from an immune defendant.

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The Supreme Court instructs that a complaint fails to state a claim upon which
relief can be granted if it does not plead “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). Conversely, a complaint
is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true,
see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so
sketchy or implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate
abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At
the same time, however, the factual allegations of a pro se complaint are to be liberally
construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Plaintiff’s statement of claim does not survive § 1915A review. It appears to the
Court that Plaintiff believes he is being held in conditions that violate his constitutional rights.
However, the complaint is completely devoid of intelligible factual allegations, apart from the
dates of Plaintiff’s housing assignments at Vienna and the suggestion that he may have been
exposed to asbestos. The mishmash of legal terms and statutory references are virtually identical
to several other similarly deficient complaints which have been filed in this Court by fellow
Vienna inmates. This verbiage does nothing to advance Plaintiff’s claim. Instead, the bulk of
Plaintiff’s statement consists of inadequate and incomplete legal conclusions, which are not
sufficient to state a viable constitutional cause of action. See Brooks, 578 F.3d 581.
Furthermore, Plaintiff does not indicate how any specific defendant (e.g., an
individual correctional officer) is responsible for any alleged violations of his constitutional

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rights. This is necessary in order to give a defendant adequate notice of the claims against him
so that he may respond to the complaint. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Fed. R. Civ. P. 8(a)(2).
For the reasons above, Plaintiff’s complaint is subject to dismissal. However,
rather than dismiss the entire action, the Court shall allow Plaintiff one opportunity to submit an
amended complaint in order to correct the deficiencies in his pleading, as detailed below.
Plaintiff is advised that as he prepares his amended complaint, instead of copying
strings of nonsensical legalese from other pro se litigants, he should follow the instructions on
the Court’s civil rights complaint form. The form directs a plaintiff to state “when, where, how,
and by whom” his rights were violated (Doc. 1, p. 5). In other words, he should state the facts
that support his claim.
Further, Plaintiff shall note that “Vienna Correctional Center” is not an entity
subject to being sued in a civil rights 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, 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). Likewise, the Vienna
Correctional Center, which is a division of the Illinois Department of Corrections, is not a
“person” within the meaning of the Civil Rights Act, and is not subject to a § 1983 suit. See
Will, 491 U.S. at 71. Therefore, in preparing the amended complaint, Plaintiff is advised to name
as Defendant(s) only the prison employees who were directly, personally responsible for the
alleged constitutional violation(s). See Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.

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2001).
In addition, Plaintiff should be aware that a prisoner is required to exhaust his
available administrative remedies before bringing a § 1983 claim in federal court. See 42 U.S.C.
§ 1997e(a).

Plaintiff’s statement that he has not availed himself of the prisoner grievance

procedure indicates that his filing of this action may have been premature (Doc. 1, p. 4).
Disposition
IT IS HEREBY ORDERED that Plaintiff’s complaint (Doc. 1) is DISMISSED
without prejudice for failure to state a claim upon which relief may be granted. Defendant
VIENNA CORRECTIONAL CENTER is DISMISSED from this action with prejudice.
IT IS FURTHER ORDERED that in order to proceed with this action, Plaintiff
SHALL submit his First Amended Complaint within 35 days of the entry of this order (on or
before August 29, 2013). The amended complaint shall identify the individual Defendant(s)
responsible for the alleged unconstitutional actions.
An amended complaint supersedes and replaces the original complaint, rendering
the original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638
n.1 (7th Cir. 2004). The Court will not accept piecemeal amendments to the original complaint.
Thus, the First Amended Complaint must stand on its own, without reference to any other
pleading. Should the First Amended Complaint not conform to these requirements, it shall be
stricken. Plaintiff must also re-file any exhibits he wishes the Court to consider along with the
First Amended Complaint. Failure to file an amended complaint may result in the dismissal of
this action with prejudice.
No service shall be ordered on any Defendant until after the Court completes its
§ 1915A review of the First Amended Complaint.

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In order to assist Plaintiff in preparing his amended complaint, the Clerk is
DIRECTED to mail Plaintiff a blank civil rights complaint form.
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).
IT IS SO ORDERED.
DATED: July 24, 2013
s/ MICHAEL J. REAGAN
United States District Judge

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