Ramirez v. Godinez et al

Filing 13

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. IT IS HEREBY ORDERED that COUNT 2 is dismissed without prejudice from this action for failure to state a claim upon which relief can be granted. The CLERK is DIRECTED to terminate DEFEN DANT GODINEZ and add WARDEN, MENARD CORRECTIONAL CENTER as a defendant, in his official capacity, for the sole purpose of identifying Defendants John Doe #1-#5. IT IS FURTHER ORDERED that with regard to COUNT 1, the Clerk of Court shall prepare for Defendant MENARD CORRECTIONAL CENTER WARDEN: (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 Michael J. Reagan on 12/11/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CESILEO RAMIREZ, #M29540,
Plaintiff,
vs.
SALVADOR GODINEZ, JOHN DOE #1,
JOHN DOE #2, JOHN DOE #3,
JOHN DOE #4, and JOHN DOE #5,
Defendants.

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Case No. 13-cv-01191-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff, an inmate who is currently incarcerated at Pontiac Correctional Center
(“Pontiac”), brings this action for constitutional deprivations pursuant to 42 U.S.C. § 1983
(Doc. 1). The action was originally filed in the United States District Court for the Central
District of Illinois. See Ramirez v. Godinez, et al., No. 13-cv-03384 (C.D. Ill. Nov. 13, 2013).
The case was transferred to this Court on November 19, 2013. In the complaint, Plaintiff claims
that he was brutally beaten by several unknown correctional officers at Menard Correctional
Center (“Menard”). He now sues these unknown defendants for the use of excessive force and
retaliation (Doc. 1, p. 12). Plaintiff seeks monetary damages.
This case is now before the Court for a preliminary review of the complaint
pursuant to 28 U.S.C. § 1915A. Under § 1915A, the Court is required to promptly screen
prisoner complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is
required to dismiss any portion of the complaint that is legally frivolous, malicious, fails to state
a claim upon which relief may be granted, or asks for money damages from a defendant who by
law is immune from such relief. 28 U.S.C. § 1915A(b).
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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.
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).
The Complaint
While in Menard‟s chapel on February 5, 2013, Plaintiff heard a gunshot (Doc. 1,
p. 10). He lay down on the floor. Several Menard correctional officers responded. Upon their
arrival, the officers restrained Plaintiff and handcuffed him. They took him to Menard‟s health
care unit (HCU) for an evaluation.

Once there, the escorting officers “maliciously [and]

sadistically punched and kicked” Plaintiff. They “brutally beat” Plaintiff by hitting him in the
back of the head with a walkie-talkie. As a result, Plaintiff sustained a “serious head injury.”

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The complaint now raises an excessive force and retaliation claim against the
unknown correctional officers (Doc. 1, p. 12). In order to identify these unknown defendants,
Plaintiff has named Salvador Godinez, the Director of the Illinois Department of Corrections
(IDOC), as a defendant (Doc. 1, pp. 11-12). Plaintiff seeks $300,000 in monetary damages.
Discussion
After carefully considering the allegations in the complaint, the Court finds that it
states a colorable excessive force claim under the Eighth Amendment (Count 1) against the
unknown Menard correctional officers, Defendants Doe #1-#5. The intentional use of excessive
force by prison guards against an inmate without penological justification constitutes cruel and
unusual punishment in violation of the Eighth Amendment and is actionable under § 1983. See
Wilkins v. Gaddy, 559 U.S. 34 (2010); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). To
state an excessive force claim, an inmate must show that an assault occurred, and that “it was
carried out „maliciously and sadistically‟ rather than as part of „a good-faith effort to maintain or
restore discipline.‟” Wilkins, 559 U.S. at 40 (citing Hudson v. McMillian, 503 U.S. 1, 6 (1992)).
The allegations in the complaint satisfy this standard. Accordingly, Plaintiff shall be allowed to
proceed with Count 1 against Defendants Doe #1-#5.
However, the complaint fails to articulate a colorable retaliation claim (Count 2)
against Defendants. In the prison context, where an inmate is alleging retaliation, the inmate
must identify the reasons for the retaliation, as well as “the act or acts claimed to have
constituted retaliation,” so as to put those charged with the retaliation on notice of the claim(s).
Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). Plaintiff must have engaged in some
protected First Amendment activity (for example, filing a grievance or otherwise complaining
about conditions of confinement), experienced an adverse action that would likely deter such

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protected activity in the future, and must allege that the protected activity was “at least a
motivating factor” in the Defendant‟s decision to take the retaliatory action. Bridges v. Gilbert,
557 F.3d 541, 552 (7th Cir. 2009). The inmate need not plead facts to establish the claim beyond
doubt, but need only provide the bare essentials of the claim, and in a claim for retaliation the
reason for the retaliation and the acts taken in an effort to retaliate suffice. Higgs, 286 F.3d at
439. The complaint does not satisfy this standard. It neither identifies a protected activity
prompting Defendants‟ retaliatory conduct, nor alleges that the protected activity was “at least a
motivating factor” in Defendants‟ decision to retaliate. Without more, Count 2 fails and shall be
dismissed without prejudice.
Identification of Unknown Defendants
Where a prisoner‟s complaint states specific allegations describing conduct of
individual prison staff members sufficient to raise a constitutional claim, but the names of those
defendants are not known, the prisoner should have the opportunity to engage in limited
discovery to ascertain the identity of those defendants. Rodriguez v. Plymouth Ambulance Serv.,
577 F.3d 816, 832 (7th Cir. 2009). “Depending on the particular circumstances of the case, the
court may assist the plaintiff by providing counsel for the limited purpose of amending the
complaint; by ordering the named defendants to disclose the identities of unnamed officials
involved; by allowing the case to proceed to discovery against high-level administrators with the
expectation that they will identify the officials personally responsible; by dismissing the
complaint without prejudice and providing a list of defects in the complaint; by ordering service
on all officers who were on duty during the incident in question; or by some other means.”
Donald v. Cook County Sheriff's Dept., 95 F.3d 548, 556 (7th Cir. 1996).

Under the

circumstances presented, the Court finds that Menard‟s warden is best suited to identify the

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unknown correctional officers at Menard.
Accordingly, the Clerk is DIRECTED to terminate Defendant Godinez as a
defendant in this action, and add the Warden, Menard Correctional Center as a defendant, in his
official capacity. See FED. R. CIV. P. 21; FED. R. CIV. P. 17(d). In any future documents filed in
this case, Plaintiff shall identify the Warden by his proper name. Once Plaintiff identifies the
defendants, he shall file an amended complaint naming them as defendants and requesting
dismissal of Menard‟s warden as a defendant.
Pending Motions
Plaintiff filed a motion for recruitment of counsel (Doc. 3), which shall be
referred to a United States Magistrate Judge.
Plaintiff also filed two motions for preservation of evidence (Docs. 6, 10), which
shall be referred to a United States Magistrate Judge.
Disposition
IT IS HEREBY ORDERED that COUNT 2 is dismissed without prejudice from
this action for failure to state a claim upon which relief can be granted.

The CLERK is

DIRECTED to terminate DEFENDANT GODINEZ and add WARDEN, MENARD
CORRECTIONAL CENTER as a defendant, in his official capacity, for the sole purpose of
identifying Defendants John Doe #1-#5.
IT IS FURTHER ORDERED that with regard to COUNT 1, the Clerk of Court
shall prepare for Defendant MENARD CORRECTIONAL CENTER WARDEN: (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 Defendant‟s place of employment as identified by Plaintiff.

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If 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 Defendant, and the Court will require Defendant to pay the full costs of formal
service, to the extent authorized by the Federal Rules of Civil Procedure.
Service shall not be made on the Unknown (John Doe) Defendants until such time
as Plaintiff has identified them by name in a properly filed amended complaint. Plaintiff is
ADVISED that it is Plaintiff‟s responsibility to provide the Court with the names and service
addresses for these individuals.
If the Defendant cannot be found at the 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, nor
disclosed by the Clerk.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance
is entered), a copy of every further 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 any document was served on Defendant 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.
Defendant is 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).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United States

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Magistrate Judge for further pre-trial proceedings, including decisions on Plaintiff‟s motion to
recruit counsel (Doc. 3) and motions for preservation of evidence (Docs. 6, 10) and expedited
discovery aimed at identifying John Doe #1-#5 with specificity.
Further, this entire matter is hereby REFERRED to a United States Magistrate
Judge 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 § 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).
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.
DATED: December 11, 2013
s/ MICHAEL J. REAGAN
United States District Judge

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