Vargas v. Smith et al

Filing 12

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge J. Phil Gilbert on 5/10/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSE A. VARGAS,
#11190-089,

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Plaintiff,
vs.
LIEUTENANT SMITH and
UNITED STATES OF AMERICA,
Defendants.

Case No. 16−cv–01376−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
During his incarceration at the Federal Correctional Institution located in Greenville,
Illinois (“FCI-Greenville”), Plaintiff Jose Vargas brought this action pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680, and Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971). In the Complaint, Plaintiff alleges that he was attacked by a gang
known as the “Latin Folks” one week after being released from protective custody into the
general prison population in August 2016. (Doc. 1, p. 5). Plaintiff sustained a serious head
injury, which the prison’s medical staff allegedly failed to properly treat. Id. In connection with
these events, he asserts a claim under the FTCA against the United States and an Eighth
Amendment claim against Lieutenant Smith. Id. Plaintiff seeks monetary relief. (Doc. 1, p. 6).
This case is now before the Court for a preliminary review of the Complaint (Doc. 1)
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–
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(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). Frivolousness is an objective standard that refers to a claim
that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th
Cir. 2000). 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. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009). The Complaint survives screening under this standard.
The Complaint
At his request, Plaintiff was placed in protective custody in the Special Housing Unit
(“SHU”) at FCI-Greenville when he transferred there in June 2016. (Doc. 1, p. 5). Plaintiff
notified prison officials that the Latin Folks had targeted him for attack, and his life was in
danger. Id. He remained in protective custody until August 2, 2016. Id.
On that date, Lieutenant Smith pulled Plaintiff from his cell and notified him that he was
being transferred into the general prison population.

(Doc. 1, p. 5).

Plaintiff informed

Lieutenant Smith that he would be assaulted by the Latin Folks, if he was placed in the general
population. Id. But the lieutenant explained that Plaintiff’s threat assessment was deemed
“unverified” after members of the gang said they had no intention of harming him. Id. Plaintiff
warned Lieutenant Smith that this was simply a ruse aimed at securing Plaintiff’s release into the

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general population so that the gang could carry out its plan to attack him. Id. Lieutenant Smith
was unpersuaded by these comments. Id. He transferred Plaintiff anyway. Id.
On August 9, 2016, the Latin Folks “savagely attacked” Plaintiff. (Doc. 1, p. 5). He
sustained serious head injuries during the attack. Id. Even so, prison medical personnel did not
send Plaintiff to the hospital for immediate evaluation and treatment, even after he asked them to
do so. Id. He does not describe what medical care was provided on site at the prison, if any. Id.
However, Plaintiff alleges that he still suffers from headaches, dizziness, and blurred vision. Id.
Plaintiff now brings a claim for money damages against the United States under the
FTCA, based on the negligence of the prison officials. (Doc. 1, pp. 5-6). In addition, he asserts
an Eighth Amendment claim against Lieutenant Smith under Bivens. Id.
Merits Review Under 28 U.S.C. § 1915A
To facilitate the orderly management of future proceedings in this case and in accordance
with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court has organized
the claims in Plaintiff’s pro se Complaint into the following counts:
Count 1 -

Defendant United States, by and through the negligence of
Defendant Lieutenant Smith, is liable under the Federal Tort
Claims Act for failing to protect Plaintiff from an assault by the
Latin Folks on or around August 9, 2016.

Count 2 -

Defendant Lieutenant Smith failed to protect Plaintiff from an
excessive risk of assault by the Latin Folks by releasing him into
the general prison population at FCI-Greenville in August 2016, in
violation of the Eighth Amendment and pursuant to Bivens.

The parties and the Court will use these designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The designation of these counts does not
constitute an opinion regarding the merits. As discussed in detail below, both claims survive
preliminary review under § 1915A and are subject to further review.

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Claims Subject to Further Review
Count 1
Federal inmates who sustain injuries in custody as a result of the negligence of prison
officials may bring suit under the Federal Tort Claims Act (“FTCA”). Buechel v. United States,
746 F.3d 753, 758 (7th Cir. 2014). The FTCA authorizes “civil actions on claims against the
United States, for money damages . . . for . . . personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while acting within the scope of
his office or employment.” 28 U.S.C. § 1346(b)(1). When determining whether a duty was
breached and was the proximate cause of the plaintiff’s injuries, courts apply the state tort law of
the state where the tort occurred. Parrott v. United States, 536 F.3d 629, 637 (7th Cir. 2008);
Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003).
In this case, Plaintiff’s injuries resulted from conduct that occurred in the State of Illinois,
so Illinois law governs his FTCA claim. In order to state a claim for negligence under Illinois
law, a complaint must allege facts establishing that the defendant owed Plaintiff a duty of care,
the defendant breached that duty, and the breach was the proximate cause of Plaintiff’s injury.
Thompson v. Gordon, 948 N.E.2d 39, 45 (Ill. 2011) (citing Iseberg v. Gross, 879 N.E.2d 278
(2007)). According to the Complaint, Plaintiff was assaulted by the Latin Folks one week after
Lieutenant Smith transferred Plaintiff from protective custody into the general population,
despite Plaintiff’s warnings that doing so would result in an attack. (Doc. 1, p. 5). These
allegations are sufficient to support an FTCA claim against the United States at screening.
Plaintiff shall be allowed to proceed with his FTCA claim. However, he can only
proceed with the claim against the United States. This is because “[t]he only proper defendant in
an FTCA action is the United States.” Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008);

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Hughes v. United States, 701 F.2d 56, 58 (7th Cir. 1982). See 28 U.S.C. § 2679(b). Therefore,
Count 1 shall be dismissed with prejudice against Lieutenant Smith.
Count 2
A federal prisoner may pursue a claim for a constitutional tort against individual federal
officials under Bivens, in much the same way a state prisoner may pursue a constitutional claim
against state officials under § 1983. See King v. Federal Bureau of Prisons, 415 F.3d 634, 636
(7th Cir. 2005). Individual participation and involvement in a constitutional deprivation is
required to state a claim against a defendant in both contexts. Arnett v. Webster, 658 F.3d 742,
757 (7th Cir. 2011). “[T]he plaintiff must allege facts which show that the individual defendant
was personally involved in the deprivation of the plaintiff’s constitutional rights.” Gossmeyer v.
McDonald, 128 F.3d 481, 494 (7th Cir. 1997).
The suit charges Lieutenant Smith with a violation of Plaintiff’s right to be free from
cruel and unusual punishment under the Eighth Amendment. Deliberate indifference is required
to support a claim under the Eighth Amendment. Arnett, 658 F.3d at 751. It is more than
negligence or even gross negligence.

Id.

Deliberate indifference “approaches intentional

wrongdoing.” Id.
A claim of deliberate indifference for failure to protect an inmate does not arise every
time an inmate is attacked by another inmate. This standard is only satisfied if the plaintiff can
demonstrate that the prison official knew of and disregarded an excessive risk to inmate health or
safety. Dale v. Poston, 548 F.3d 563, 569 (7th Cir. 2008). The defendant “must both be aware
of facts from which the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Once a
prison official becomes aware of a risk, the official has an obligation to “take reasonable

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measures to abate” the serious risk of harm. Dale, 548 F.3d at 569 (citing Borello v. Allison, 446
F.3d 742, 747 (7th Cir. 2006)).
The allegations in the Complaint suggest that Lieutenant Smith was aware of the risk that
Plaintiff would be attacked by the Latin Folks. (Doc. 1, p. 5). Plaintiff repeatedly told the
lieutenant that the Latin Folks were targeting him. Id. He requested continued placement in
protective custody because of the threat posed by the gang. Id. The lieutenant chose to move
Plaintiff to the general prison population anyway, and the Latin Folks attacked Plaintiff a week
later. Id. In light of these allegations, the Eighth Amendment claim in Count 2 shall receive
further review against Lieutenant Smith pursuant to Bivens. However, Plaintiff cannot proceed
with this claim against the United States, and Count 2 shall therefore be dismissed with prejudice
against this defendant.
Claims Not Subject to Further Review
No claim arises from the conduct of FCI-Greenville’s medical staff. To begin with,
Plaintiff failed to name any member of the prison’s medical staff as a defendant in this action.
When parties are not listed in the caption, this Court will not treat them as defendants, and any
claims against them should be considered dismissed without prejudice. See FED. R. CIV. P. 10(a)
(noting that the title of the complaint “must name all the parties”); Myles v. United States, 416
F.3d 551, 551-52 (7th Cir. 2005) (holding that to be properly considered a party, a defendant
must be “specif[ied] in the caption”). Plaintiff’s failure to name a member of the medical staff as
a defendant is fatal to any Bivens claim he intended to bring.
Also fatal to his Bivens claim is the fact that Plaintiff included insufficient allegations to
state any claim for relief against an individual member of the medical staff. He simply alleges
that the medical staff’s conduct fell below community standards of care. He offers no indication

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of what, if any, care the medical staff provided at FCI-Greenville. Plaintiff simply disagrees
with their decision not to send him for immediate outside treatment at a hospital. The threadbare
allegations certainly do not suggest that the medical staff exhibited deliberate indifference
toward Plaintiff’s serious medical condition in violation of the Eighth Amendment. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”). Accordingly, Plaintiff cannot pursue
a claim under Bivens against any individual member of the prison’s medical staff. This claim
should be considered dismissed without prejudice.
The fact that Plaintiff also failed to file an Affidavit/Certificate of Merit along with his
Complaint precludes him from pursuing a claim for relief under the FTCA based on the
negligence of medical staff. See 735 ILL. COMP. STAT. § 5/2-622(g); Sherrod v. Lingle, 223 F.3d
605, 613 (7th Cir. 2000). Under Illinois law, a plaintiff “[i]n any action, whether in tort, contract
or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical,
hospital, or other healing art malpractice,” must file an affidavit along with the complaint,
declaring one of the following: (1) that the affiant has consulted and reviewed the facts of the
case with a qualified health professional who has reviewed the claim and made a written report
that the claim is reasonable and meritorious (and the written report must be attached to the
affidavit); (2) that the affiant was unable to obtain such a consultation before the expiration of
the statute of limitations, and affiant has not previously voluntarily dismissed an action based on
the same claim (and in this case, the required written report shall be filed within 90 days after the
filing of the complaint); or (3) that the plaintiff has made a request for records but the respondent
has not complied within 60 days of receipt of the request (and in this case the written report shall
be filed within 90 days of receipt of the records). See 735 ILL. COMP. STAT. §5/2-622(a).

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A separate affidavit and report must be filed as to each defendant. See 735 ILL. COMP. STAT.
§ 5/2-622(b). Plaintiff filed no Affidavit/Certificate of Merit. Without one, he cannot pursue
relief for the negligence of FCI-Greenville’s medical staff against the United States under the
FTCA. This aspect of the FTCA claim is considered dismissed without prejudice.
Pending Motions
Plaintiff filed two Motions for Recruitment of Counsel (Docs. 3, 5), which shall be
REFERRED to a United States Magistrate Judge for a decision.
Disposition
IT IS HEREBY ORDERED that COUNT 1 is subject to further review against
Defendant UNITED STATES. However, this claim is DISMISSED with prejudice against
Defendant LIEUTENANT SMITH for failure to state a claim upon which relief may be
granted.
IT IS ORDERED that COUNT 2 is subject to further review against Defendant
LIEUTENANT SMITH.

However, this claim is DISMISSED with prejudice against

Defendant UNITED STATES for failure to state a claim upon which relief may be granted.
IT IS ALSO ORDERED that all claims arising from the conduct of FCI-Greenville’s
medical staff are considered DISMISSED without prejudice from this action.
IT IS ORDERED that with regard to COUNT 1, the Clerk of Court is DIRECTED to
complete, on Plaintiff’s behalf, a summons for service of process on Defendant UNITED
STATES OF AMERICA; the Clerk shall issue the completed summons. Further, with regard to
COUNT 2, the Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a summons and
form USM-285 for service of process on Defendant LIEUTENANT SMITH; the Clerk shall
issue the completed summons.

The United States Marshal SHALL serve Defendant

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LIEUTENANT SMITH pursuant to Rule 4(e) of the Federal Rules of Civil Procedure.1 All
costs of service shall be advanced by the United States, and the Clerk shall provide all necessary
materials and copies to the United States Marshals Service.
In addition, pursuant to Federal Rule of Civil Procedure 4(i), the Clerk shall (1)
personally deliver to or send by registered or certified mail addressed to the civil-process clerk at
the office of the United States Attorney for the Southern District of Illinois a copy of the
summons, the Complaint (Doc. 1), and this Memorandum and Order; and (2) send by registered
or certified mail to the Attorney General of the United States at Washington, D.C., a copy of the
summons, the Complaint (Doc. 1), and this Memorandum and Order.
It is FURTHER ORDERED that Plaintiff shall serve upon the United States Attorney
for the Southern District of Illinois a copy of every pleading or other document submitted for
consideration by this Court. Plaintiff shall include with the original paper to be filed a certificate
stating the date that a true and correct copy of the document was mailed to the United States
Attorney. Any paper received by a district judge or a magistrate judge which has not been filed
with the Clerk or which fails to include a certificate of service will be disregarded by the Court.
IT IS ORDERED that, 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,
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Rule 4(e) provides, “an individual – other than a minor, an incompetent person, or a person whose
waiver has been filed – may be served in a judicial district of the United States by: (1) following state law
for serving a summons in an action brought in courts of general jurisdiction in the state where the district
court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the
summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s
dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or law to receive service of process.”

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nor disclosed by the Clerk.
IT IS ORDERED that 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.
IT IS ORDERED that pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a
United States Magistrate Judge for further pre-trial proceedings, including a decision on the
two Motions for Recruitment of Counsel (Docs. 3, 5).
IT IS FURTHER ORDERED that this entire matter is 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.
IT IS ORDERED that 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, regardless of whether his application to proceed in forma pauperis is 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)

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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: May 10, 2017
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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