Westbrook v. Vienna Correctional Center

Filing 7

ORDER DISMISSING CASE with prejudice; Defendant VIENNA CORRECTIONAL CENTER is DISMISSED with prejudice; and this action is DISMISSED without prejudice pursuant to 28 U.S.C. § 1997e(a). This dismissal shall not count as one of Plaintiff's allotted "strikes" under 28 U.S.C. § 1915(g). Signed by Judge G. Patrick Murphy on 8/23/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LLOYD WESTBROOK, No. R44929,
Plaintiff,
vs.
VIENNA CORRECTIONAL CENTER,
Defendant.

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Case No. 13-cv-00751-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff Lloyd Westbrook, an inmate in Vienna Correctional Center, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. This case is now
before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which
provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which
a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action 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). The claim of entitlement to
relief must cross “the line between possibility and plausibility. Id. at 557.
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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).
Upon careful review of the complaint, the Court finds it appropriate to exercise its
authority under Section 1915A and summarily dismiss this action.
Plaintiff Westbrook takes issue with the conditions of his confinement at Vienna
Correctional Center (“Vienna”), where he has been housed since April1, 2013. According to the
complaint: Westbrook is being exposed to asbestos-covered pipes and mold; on the second floor,
there are only two toilets for 100 inmates; on the third floor there are only three working toilets
for 104 inmates—and the working toilets overflow; there is feces on the floor; water drips from
the ceiling, and there is black mold; there is no ventilation in the bathrooms; there are spiders and
bugs in Plaintiff’s cell that bite him; and rats and mice destroy his property. All of these issues,
alone and in combination, are actionable Eighth Amendment claims. See Vance v. Rumsfeld, 701
F.3d 193, 205-06 (7th Cir. 2012), citing Wilson v. Seiter, 501 U.S. 294, 304 (1991) (holding that
conditions of confinement may establish an Eighth Amendment violation in combination, even if
each would not suffice alone; this would occur when they have “a mutually enforcing effect that
produces the deprivation of a single, identifiable human need such as food, warmth, or
exercise”)).
With that said, upon careful review of the complaint, the Court finds the complaint
suffers from a number of fatal flaws, and the action must be summarily dismissed. First,

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Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 and the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680 (Doc. 1). However, the FTCA provides
jurisdiction for suits against the United States regarding torts committed by federal officials, not
state officials. Therefore, all FTCA claims must be dismissed with prejudice.
Second, Vienna Correctional Center, the only named defendant must also be dismissed.
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 Section 1983
suit. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).
While the warden of the facility would be the proper defendant to answer claims
regarding the conditions of confinement, see Delaney v. DeTella, 256 F.3d 679, 687 (7th Cir.
2001), and this defect can be easily cured, there is one more impediment to this action
proceeding. Under the Prison Litigation Reform Act, exhaustion of available administrative
remedies is a precondition to suit. 42 U.S.C. § 1997e(a); Dale v. Lappin, 376 F.3d 652, 655 (7th
Cir. 2004). Although Plaintiff is not required to plead exhaustion in order to proceed with his
claim in federal court, Plaintiff’s unambiguous admission in the complaint that he did not even
attempt to utilize administrative grievance procedures before filing this action, because “[t]hey
are not the Court,” is determinative. See, e.g., Kalinowski v. Bond, 358 F.3d 978, 978 (7th Cir.
2004); Thomson v. Washington, 362 F.3d 969, 970 (7th Cir. 2004) (“It is of course true that if a
complaint pleads facts that show that the plaintiff does not have a claim, the complaint should be
dismissed without further ado.”) Plaintiff’s complaint makes it abundantly clear that he failed to
comply with the requirements of Section 1997e(a), and there is no indication administrative
remedies were unavailable; rather, Plaintiff simply prefers the courts. Therefore, this action was

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prematurely filed and must be dismissed, albeit without prejudice. If and when the exhaustion
requirement is satisfied, Plaintiff can file a new action.
The Filing Fee
Plaintiff has already been granted pauper status by separate order. Plaintiff’s obligation
to pay the filing fee for this action was incurred at the time the complaint was filed, thus the
filing fee of $350.00 remains due and payable, even though this action is being dismissed. See
28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
DISPOSITION
IT IS HEREBY ORDERED that, for the reasons stated, all Federal Tort Claim Act
claims are DISMISSED with prejudice; Defendant VIENNA CORRECTIONAL CENTER is
DISMISSED with prejudice; and this action is DISMISSED without prejudice pursuant to 28
U.S.C. § 1997e(a). This dismissal shall not count as one of Plaintiff’s allotted “strikes” under 28
U.S.C. § 1915(g). Judgment shall enter accordingly and the Clerk of Court shall close this case.
IT IS SO ORDERED.
DATED: August 23, 2013
s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

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