Engel v. People

Filing 8

IT IS HEREBY ORDERED that this case is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that PEOPLE is DISMISSED with prejudice for failure to state a claim upon which relief may be gra nted.IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff shall file his First Amended Complaint, stating any facts which may exist to support his Eighth Amendment claims, within 28 days of the entry of this order.(Amended Pleadings due by 4/6/2017). Signed by Chief Judge Michael J. Reagan on 3/9/2017. (tjk)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS TIMOTHY ENGEL, #M36902 Plaintiff, vs. PEOPLE, Defendant. ) ) ) ) ) ) ) ) ) Case No. 17−cv–024−MJR MEMORANDUM AND ORDER REAGAN, Chief District Judge: Plaintiff Timothy Engel, an inmate at Shawnee Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. In his Complaint, Plaintiff claims he was assaulted by various individuals at Vienna Correctional Center in violation of the Eighth Amendment’s prohibition of cruel and unusual punishment. (Doc. 1). 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). Frivolousness is an objective standard that refers 1 to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (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). Upon careful review of the Complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; this action is subject to summary dismissal. The Complaint In his Complaint (Doc. 1), Plaintiff makes the following allegations: from November 13, 2016 to November 24, 2016, Plaintiff was stabbed in his rib cage by “Robert;” “Anderson” tried to stab Plaintiff in his neck; “Hernandez” threw a punch behind Plaintiff’s head; “Stewart” threw objects at Plaintiff’s head and body; and “Lt. Reid” attacked Plaintiff twice behind his back while he was handcuffed. (Doc. 1, pp. 5-6). Plaintiff also claims that “Anderson, Hernandez, Stewart, [and] Fowler tempted [sic] to kill [him] . . . while officials refused/denied to move [him].” (Doc. 1, p. 5). The Complaint further states that after officials and prisoners senselessly threatened and sought to fight and rape Plaintiff, he was forced to “talk crazy and curse at times just for self-defense.” (Doc. 1, p. 6). Plaintiff seeks monetary damages. (Doc. 1, p. 10). Discussion At the outset, it is clear that Plaintiff has not named an appropriate defendant in this case, as the only named defendant is “People.” (Doc. 1). Plaintiff cannot maintain a civil rights action against “The People of the State of Illinois,” if this was his intent. In an action brought pursuant 2 to § 1983, a plaintiff “must show that the alleged [constitutional] deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added). If Plaintiff's constitutional rights have been violated during his imprisonment, he must then pursue his claim against the prison official whose conduct caused the violation, not against the State of Illinois or its entire population. Further, though he has named several individuals in his statement of claim, Plaintiff has not listed any of these parties in his case caption. When parties are not listed in the caption, this Court will not treat them as defendants. 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) (to be properly considered a party, a defendant must be “specif[ied] in the caption”). Plaintiff is advised that, in order to maintain a § 1983 case, he must describe what each named defendant did (or failed to do), that violated his constitutional rights. For these reasons, “People” will be dismissed with prejudice. Because “People” is the only named defendant in this action, this case will also be dismissed, albeit without prejudice. Pending Motions Plaintiff has filed a Motion for Leave to Proceed in forma pauperis (Doc. 2), which will be addressed in a separate order. Plaintiff has also filed a Motion for Appointment of Counsel (Doc. 3), which is hereby DENIED without prejudice. There is no constitutional or statutory right to appointment of counsel in federal civil cases. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010). Federal District Courts have discretion under 28 U.S.C. § 1915(e)(1) to request counsel to assist pro se litigants. Id. When presented with a request to appoint counsel, the Court must consider: “(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively 3 precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself [.]” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007). With regard to the first step of the inquiry, there is no indication whether Plaintiff has attempted to obtain counsel on his own, or has been effectively precluded from doing so. Because Plaintiff has not made this showing, the Court finds that Plaintiff has not made a reasonable attempt to find counsel. Therefore, Plaintiff’s motion for the appointment of counsel is properly denied, though Plaintiff is not precluded from reasserting his request once he is able to show that he satisfies the abovementioned criteria. Disposition IT IS HEREBY ORDERED that this case is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that PEOPLE is DISMISSED with prejudice for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff shall file his First Amended Complaint, stating any facts which may exist to support his Eighth Amendment claims, within 28 days of the entry of this order (on or before April 6, 2017). Should Plaintiff fail to file his First Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, the entire case shall be dismissed with prejudice for failure to comply with a court order and/or for failure to prosecute his claims. FED. R. APP. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2). Such dismissal shall count as one of Plaintiff’s three allotted “strikes” within the meaning of 28 U.S.C. § 1915(g). Should Plaintiff decide to file a First Amended Complaint, it is strongly recommended 4 that he use the forms designed for use in this District for such actions. He should label the form, “First Amended Complaint,” and he should use the case number for this action (i.e. 17-cv-024MJR). The pleading shall present each claim in a separate count, and each count shall specify, by name, each defendant alleged to be liable under the count, as well as the actions alleged to have been taken by that defendant. Plaintiff should attempt to include the facts of his case in chronological order, inserting each defendant’s name where necessary to identify the actors. Plaintiff should refrain from filing unnecessary exhibits. Plaintiff should include only related claims in his new complaint. Claims found to be unrelated to the Eighth Amendment claims Plaintiff has alleged in this action will be severed into new cases, new case numbers will be assigned, and additional filing fees will be assessed. 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 previous pleading, and Plaintiff must re-file any exhibits he wishes the Court to consider along with the First Amended Complaint. The First Amended Complaint is subject to review pursuant to 28 U.S.C. § 1915A. No service shall be ordered on any defendant until after the Court completes its § 1915A review of the First Amended Complaint. Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was incurred at the time the action was filed, thus the filing fee of $350.00 1 remains due and payable, regardless of whether Plaintiff elects to file a First Amended Complaint. 1 See 28 U.S.C. Pursuant to 28 U.S.C. § 1914, effective May 1, 2013, an additional $50.00 administrative fee is also to be assessed in all civil actions, unless pauper status has been granted. 5 § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). 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). In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form. IT IS SO ORDERED. DATED: March 9, 2017 s/ MICHAEL J. REAGAN Chief Judge Michael J. Reagan United States District Court 6

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