Foerderer v. Mathias et al

Filing 9

MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 6/26/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LEVI FOERDERER, #10312-059,
Plaintiff,
vs.
T. MATHIAS,
J. GOODRICH,
R. ROBINSON,
JOHN DOE 1, and
JOHN DOE 2,
Defendants.

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Case No. 17-cv-429-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Levi Foerderer, an inmate who is currently incarcerated at the Federal
Correctional Complex in Coleman, Florida, brings this pro se action pursuant to Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971) (“Bivens”). In his Complaint, Plaintiff claims that
during his time at FCI Greenville (“Greenville”), the defendants failed to protect him from other
inmates in violation of the Eighth Amendment, leading to his sustaining injuries and being
exposed to an increased risk of violence from inmates who became aware that Plaintiff
previously acted as a government witness. (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
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(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, 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 allow part of this action to proceed past the threshold stage.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations: Case Manager
Mathias allowed a known violent inmate, Michael Perkins, to be placed in Plaintiff’s cell even
after Plaintiff told her of his prior history of being assaulted for being a government witness and
about a court’s finding that he needs extra protection due to his previous cooperation with the
government. (Doc. 1, p. 5). Mathias knew of Perkins’ history of violence because her position
requires her to closely review all inmate central files of inmates on her caseload. Id. In their
conversation, Plaintiff specifically requested to be moved to a low security institution because
his points were low and “other inmates had been assaulted for being cooperating witnesses and
due to [his] prior history of being assaulted, [Plaintiff] felt especially vulnerable to attacks.”
(Doc. 1, p. 12). In response to Plaintiff mentioning the court finding that he needed protection,
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Mathias “laughed and said she did not have to follow court findings and that [Plaintiff] would be
fine.” Id.
Counselor Goodrich placed Perkins, a known violent inmate, in Plaintiff’s cell even after
Plaintiff expressed deep concern over potential attacks due to his having been a government
witness and pleaded with Goodrich not to place any violent inmates with him. (Doc. 1, p. 5).
Goodrich knew of Perkins’ history of violence because his position requires him to review the
files of all inmates on his caseload. Id. Goodrich also knew that a court determined that Plaintiff
needed to be protected, but ignored the court’s finding when he placed Perkins in Plaintiff’s cell.
Id. In his conversation with Goodrich, Plaintiff expressed concern about someone finding out
that he had testified in court because other inmates were asking for paperwork. (Doc. 1, p. 13).
Goodrich asked Plaintiff if anyone had asked him, and Plaintiff replied not yet. Id. Goodrich
told Plaintiff not to worry until someone asked him. Id. Plaintiff asked Goodrich to recommend
that he be transferred to a “low,” but Goodrich said Plaintiff would have to speak to Mathias. Id.
That week, Goodrich informed Plaintiff that he would be getting a new cellmate. Id.
Plaintiff told him not to place anyone with him who would give him problems. Id. That
afternoon, Michael Perkins was placed in Plaintiff’s cell. Id. On August 19, 2016, Perkins
entered the cell at approximately 9:00pm. Id. He had an email stating that Plaintiff had
cooperated with authorities and that he was working for the U.S. Marshals under a different
name. Id. Perkins told Plaintiff that he had until noon the following day to find somewhere else
to live if he did not want to get “smashed.” (Doc. 1, pp. 13-14). Plaintiff told him there were not
open cells, but Perkins did not revise his ultimatum. (Doc. 1, p. 14).
The next morning, Perkins awoke to a noise Plaintiff made and looked at Plaintiff
angrily. Id. Plaintiff told him that he needed to find somewhere else to live if he did not like

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Plaintiff because he was not going to move out of his cell. Id. Perkins cursed at Plaintiff and
advanced toward him aggressively, with his fists balled up. Id. Plaintiff ducked his advance and
Perkins tripped on Plaintiff’s leg. Id. Perkins fell and hit his head on a desk. Id. Perkins told
Plaintiff that he was a “dead rat” and lunged toward him. Id. Plaintiff feared for his life,
particularly due to Perkins’ large size (6 feet, 4 inches tall and 350 pounds). Id. Plaintiff
defended himself by striking Perkins in the back and side of his head as he grabbed Plaintiff’s
legs and attempted to pick him up. (Doc. 1, p. 15). Plaintiff then pushed Perkins out of the cell,
and Perkins left. Id. During the confrontation, Plaintiff broke his hand while striking Perkins.
Id. This injury caused Plaintiff a great deal of pain. Id.
Plaintiff left his cell and when he returned, Perkins and another inmate were digging
through Plaintiff’s personal things. Id. Plaintiff asked them to stop, at which point three officers
approached the cell and detained both Plaintiff and Perkins. Id. Plaintiff was taken to the
Special Housing Unit (“SHU”), where SIS Technician Serio attempted to question Plaintiff about
what had occurred within earshot of other SHU inmates. Id. Plaintiff responded that he could
not tell him there because other inmates would be able to hear what was said. (Doc. 1, p. 16).
Plaintiff was moved to a cell occupied by Jason Foerster, a member of Latin Folk street gang,
who was in the SHU for assaulting another inmate. Id. His gang has an assault-on-sight policy
for cooperating witnesses.

Id.

Foerster was aware that Plaintiff had cooperated with the

government because Perkins put Plaintiff’s name and case number in numerous places in the
SHU law library. Id. Another inmate in the SHU informed Plaintiff that Perkins had stolen the
addresses for his 7-year-old daughter, her mother and Plaintiff’s sister and had handed them out
to other SHU inmates, instructing them to write them obscene letters because they were
“strippers.” Id. Plaintiff asserts that he never should have been placed with Perkins because he

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is low security and Perkins is high security. (Doc. 1, p. 17).
John Doe 1, a member of the mailroom staff at Greenville, allowed an article about
Plaintiff’s cooperation with the government and his being beaten as a result of his testimony into
the institution through the mail. (Doc. 1, p. 6). In the article was a picture of Plaintiff, with a
bruised and swollen face from his having been beaten. Id. John Doe should have known about
the article because “program statement policy 5800.10 requires mandatory opening and
inspecting of all mail and packages for contraband,” and he also had the common knowledge that
“cooperating witnesses face serious harm and death in prison.” Id.
Unit Manager Robinson allowed Goodrich and Mathias to place a violent inmate in
Plaintiff’s cell even after he expressed his deep concern for his life and safety to her. Id.
Robinson was in a position that required her to oversee the decisions of Mathias and Goodrich.
Id. Despite this, she told Plaintiff that he needed to speak to Goodrich, his counselor or his case
manager about his fears of being attacked and the court order stating that Plaintiff needed
protection. (Doc. 1, p. 12). Robinson told Plaintiff that addressing his concerns on these issues
was “not her job” and that she did not “want to hear it.” Id.
John Doe 2, a DSCC administrator, transferred Plaintiff to a USP with medium points
after Greenville’s warden requested he be sent to one. (Doc. 1, p. 7). Plaintiff had expressed his
fear of attack to John Doe 2 and sent him copies of his “J&C,” which stated: “The defendant has
been the subject to acts of violence and needs to be protected. There should be particular
attention paid to protecting his safety.” Id.
Plaintiff seeks declaratory, monetary and permanent injunctive relief. (Doc. 1, pp. 8-11).
Discussion

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The Court begins its § 1915A review with a note about the parties in this case.
Throughout his Complaint, Plaintiff refers to the conduct of some individuals not named in the
caption or defendant list. For example, he states that he spoke with Patterson and Lloyd about
his situation, and that Serio failed to question Plaintiff about the attack by Perkins in a private
setting and instead placed him in danger in a cell with Foerster. Because these individuals are
not listed in Plaintiff's caption by name, they will not be treated as defendants in this case and
any claims against them should be considered dismissed without prejudice. See Myles v. United
States, 416 F.3d 551, 551–52 (7th Cir. 2005) (defendants must be “specif[ied] in the caption”).
Turning to the allegations in Plaintiff's Complaint, the Court finds it convenient to divide
the pro se action into the following enumerated counts. 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 their merit.
Count 1 –

Mathias, Goodrich and Robinson failed to protect Plaintiff from violence
at the hands of inmate Perkins in violation of the Eighth Amendment.

Count 2 –

John Doe 1 failed to protect Plaintiff from potential violence at the hands
of fellow inmates in violation of the Eighth Amendment by allowing
correspondence identifying Plaintiff as a government witness into
Greenville through the mail.

Count 3 –

John Doe 2 failed to protect Plaintiff from potential violence at the hands
of fellow inmates in violation of the Eighth Amendment when he
transferred Plaintiff to a USP with medium points.

Count 4 –

Defendants’ failure to protect Plaintiff from Perkins and potential violence
at the hands of other inmates constituted negligence under Illinois law.

As discussed in more detail below, Count 1 will be allowed to proceed in this action and
the remaining claims will be dismissed for failure to state a claim upon which relief may be
granted. Any other intended claim that has not been recognized by the Court is considered
dismissed without prejudice as inadequately pled under the Twombly pleading standard.
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Count 1 – Failure to Protect against Mathias, Goodrich and Robinson
In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court held that “prison officials
have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Id. at 833
(internal citations omitted); see also Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006).
However, not every harm caused by another inmate translates into constitutional liability for the
corrections officers responsible for the prisoner’s safety. Farmer, 511 U.S. at 834.
In order for Plaintiff to succeed on a claim for failure to protect, he must show that he is
incarcerated under conditions posing a substantial risk of serious harm, and that the defendants
acted with “deliberate indifference” to that danger. Id.; Pinkston, 440 F.3d at 889. Plaintiff also
must prove that prison officials were aware of a specific, impending and substantial threat to his
safety, often by showing that he complained to prison officials about a specific threat to his
safety. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996). In other words, the defendants had to
know that there was a substantial risk that the person who attacked Plaintiff would do so, yet
failed to take any action. See Sanville v. McCaughtry, 266 F.3d 724, 733-34 (7th Cir. 2001).
However, conduct that amounts to negligence or inadvertence is not enough to state a claim.
Pinkston, 440 F.3d at 889 (discussing Watts v. Laurent, 774 F.2d 168, 172 (7th Cir. 1985)).
Plaintiff has sufficiently stated a failure to protect claim against Mathias, Goodrich and
Robinson, at least at this stage.

These defendants allegedly knew that he had acted as a

government witness and had been attacked before because of it. Nevertheless, these defendants
allegedly failed to prevent a known violent inmate from being placed in Plaintiff’s cell, and when
Perkins was placed there despite Plaintiff’s objections, Plaintiff was attacked and suffered
injuries that allegedly could have been prevented. Count 1 will therefore be allowed to proceed.
Count 2 – Failure to Screen Mail

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Under the standard articulated in Farmer, Plaintiff has failed to state a cognizable failure
to protect claim against John Doe 1 based on his alleged failure to prevent an article about
Plaintiff being a government witness from entering the prison through the mail. To be sure, the
intentional identification of an inmate as a government witness or “snitch” may give rise to a
failure to protect claim under the Eighth Amendment, see Brown v. Narvais, 265 F. App'x 734,
736 (10th Cir. 2008) (“allegations of a prison officer’s deliberate disclosure of dangerous
information about an inmate's status are sufficient to state a claim under the Eighth Amendment
provided the alleged danger is facially concrete and plausible enough to satisfy basic pleading
standards.”), as can a prison official’s intentional heightening of the risk of future injury to a
prisoner, even if a prisoner is not ultimately injured. See Wright v. Miller, 561 F. App’x 551,
555 (7th Cir. 2014) (citing Budd v. Motley, 711 F.3d 840, 843 (7th Cir. 2013); see also Thomas
v. Illinois, 697 F.3d 612, 614–16 (7th Cir. 2012) (explaining that “hazard, or probabilistic harm”
could allow recovery); Irving v. Dormire, 519 F.3d 441, 449 (8th Cir. 2008) (concluding that
guard's alleged attempts to induce other inmates to assault plaintiff prisoner “posed a substantial
risk of serious harm to [the prisoner's] future health”)).
This case, however, is distinct from those in which prison officials intentionally identify a
prisoner as an informant because there is no allegation, nor apparent probability, that the actions
taken or not taken by John Doe 1 were intentional or done with an awareness of Plaintiff’s
situation. Plaintiff does not allege that he informed John Doe 1 of his situation or that he
otherwise was aware of it, which is necessary to establish deliberate indifference. Grieveson v.
Anderson, 538 F.3d 763, 775-76 (7th Cir. 2008) (prisoner did not mention to guards that he was
perceived to be a “snitch” or otherwise apprise them of a specific threat to his life, and “the
inquiry is not whether [defendants] should have known about risks to [an inmates] safety, but

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rather whether they did know of such risks”).
Furthermore, prison officials may inspect mail to ensure that it does not contain
contraband, as Plaintiff alleges is the policy at Greenville. Kaufman v. McCaughtry, 419 F.3d
678, 685-86 (7th Cir. 2005) (citing Wolff v. McDonnell, 418 U.S. 539, 576 (1974)). That said, a
failure to perfectly and flawlessly follow a prison policy does not give rise to an Eighth
Amendment claim, and a prison official’s accidental or inadvertent failure to protect inmates
from harm by other prisoners is not sufficient to state an Eighth Amendment violation. Farmer,
511 U .S. at 840. Because Plaintiff merely alleges that John Doe 1 failed to prevent a single
piece of mail with information about Plaintiff from entering the institution, without further
indication that John Doe 1 was aware that Plaintiff was a government witness facing serious
potential harm, or was more than merely negligent in failing to identify the piece of mail when it
came in, Count 2 fails to state a claim upon which relief may be granted and will be dismissed
without prejudice.
Count 3 – Prison Transfer
The United States Supreme Court has long recognized that the Constitution does not
guarantee placement in any particular prison. See Meachum v. Fano, 427 U.S. 215, 224 (1976).
This is because “prisoners possess neither liberty nor property in their classifications and prison
assignments. States may move their charges to any prison in the system.”

DeTomaso v.

McGinnis, 970 F.2d 211, 212 (7th Cir. 1992) (citing Montanye v. Haymes, 427 U.S. 236 (1976)).
Here, Plaintiff is not just complaining about his transfer to a different prison, however. Rather,
he challenges his transfer to a USP with medium, as opposed to low points. He brings this as a
failure to protect claim under the Eighth Amendment.
The complaint allegations do not suggest that John Doe 2 acted with deliberate

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indifference in conjunction with Plaintiff's transfer. Plaintiff does not allege or suggest that John
Doe 2 had any knowledge that a USP with medium points would pose any specific risk of harm
to Plaintiff, much less a serious harm. In fact, Plaintiff was transferred from Greenville USP,
which is a medium security federal correctional institution1 where there allegedly are inmates
who are aware that Plaintiff was a government witness. Logic dictates that a different medium
security prison would be safer than Greenville for Plaintiff, not more dangerous.

For the

foregoing reasons, Plaintiff’s transfer did not violate his constitutional rights, and Count 3 will be
dismissed with prejudice for failure to state a claim upon which relief may be granted.
Count 4 – Negligence under Illinois Law
A federal prisoner who seeks relief for the misconduct of federal agents has three options
for obtaining relief in federal court. He may bring a suit against the United States under the
Federal Tort Claims Act (“FTCA”) for misconduct of federal agents that is considered tortious
under state law. Sisk v. United States, 756 F.2d 497, 500 n.4 (7th Cir. 1985) (citing 28 U.S.C. §§
1346(6), 2680). He may bring a suit against the agent for a violation of his constitutional rights
under the theory set forth in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
Id. Or, he may bring both types of claims in the same suit. See, e.g., Ting v. United States, 927
F.2d 1504, 1513 n. 10 (9th Cir. 1991).

Plaintiff's Amended Complaint raises constitutional

claims under Bivens and attempts to raise Illinois state law claims, without mention of the FTCA.
Because the FTCA is Plaintiff’s only vehicle by which he can bring negligence claims against
the defendants, this Court will construe the Complaint as if Plaintiff intended to bring his
negligence claims under the FTCA, though he has not successfully stated a claim under this
framework.

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FCI Greenville, FEDERAL BUREAU OF PRISONS, https://www.bop.gov/locations/institutions/gre/index.jsp.

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First, “[t]he only proper defendant in an FTCA action is the United States.” Jackson v.
Kotter, 541 F.3d 688, 693 (7th Cir. 2008); Hughes v. United States, 701 F.2d 56, 58 (7th Cir.
1982). See 28 U.S.C. § 2679(b). Plaintiff has not named the United States as a defendant in this
action. Further, federal prisoners bringing suit against the United States under the FTCA for
injuries they sustain while incarcerated must first present the claim to the federal agency
responsible for the injury. See Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003).
Plaintiffs generally show exhaustion by filing with their complaint a copy of the “final denial of
claim” letter indicating that agency review has been completed and the individual may seek relief
in court. Plaintiff has provided no such document, nor has he alleged that his claims have been
appropriately exhausted. Thus, any claims Plaintiff seeks to bring under Illinois negligence law,
and/or the FTCA, fail to state a claim upon which relief can be granted. Count 4 will therefore
be dismissed without prejudice.
Pending Motions
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 3) that is hereby
REFERRED to United States Magistrate Judge Reona J. Daly for a decision.
Disposition
IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against MATHIAS,
GOODRICH and ROBINSON.
IT IS FURTHER ORDERED that COUNTS 2 and 4 shall be DISMISSED without
prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that COUNT 3 shall be DISMISSED with prejudice for
failure to state a claim upon which relief may be granted.

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IT IS FURTHER ORDERED that JOHN DOE 1 and JOHN DOE 2 shall be
DISMISSED without prejudice from this action for failure to state a claim upon which relief
may be granted.
The Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a summons and
form USM-285 for service of process on MATHIAS, GOODRICH and ROBINSON; the Clerk
shall issue the completed summons. The United States Marshal SHALL serve Defendants
MATHIAS, GOODRICH and ROBINSON pursuant to Rule 4(e) of the Federal Rules of Civil
Procedure. 2 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, 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, and this Memorandum and Order.
It is FURTHER ORDERED that Plaintiff shall serve upon Defendants, or if an
appearance has been entered by counsel, upon that attorney, 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 each defendant or counsel. Any paper received by a district judge or a magistrate
2

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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judge which has not been filed with the Clerk or which fails to include a certificate of service
will be disregarded by the Court.
Defendants are 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 United States Magistrate
Judge Reona J. Daly for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Reona J.
Daly 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 FURTHER ORDERED that if judgment is rendered against Plaintiff, and the
judgment includes the payment of costs under Section 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).
Finally, Plaintiff is ADVISED that he is under an 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 26, 2017
s/STACI M. YANDLE
U.S. District Judge

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