Larsen v. Baldwin et al
Filing
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ORDER: Motion for Recruitment of Counsel (Doc. 3) is DENIED without prejudice. The Court will remain open to appointing counsel as the case progresses. IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice. Plaintiff is GRANTED leav e to file a First Amended Complaint on or before September 13, 2017. To enable Plaintiff to comply with this Order, the CLERK is DIRECTED to mail Plaintiff a blank civil rights complaint form. ( Amended Pleadings due by 9/13/2017.). Signed by Chief Judge Michael J. Reagan on 8/16/2017. (tkm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BART LARSEN,
No. R-65815,
Plaintiff,
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vs.
JOHN BALDWIN,
MATTHEW SWALLS, and
PENNY GEORGE,
Case No. 17−cv–558-MJR
Defendants.
MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Bart Larsen, an inmate in Vienna Correctional Center (“Vienna”), brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff
generally alleges that he was injured at Vienna (electrocuted) and did not receive proper
treatment for the injury. (Doc. 1, p. 5). Plaintiff also brings vague claims directed against staff at
working in Vienna’s healthcare unit. Id. In the caption of his Complaint, Plaintiff identifies John
Baldwin (the acting director of IDOC), Matthew Swalls (the warden of Vienna), and Penny
George (a healthcare administrator at Vienna) as Defendants. (Doc. 1, pp. 1-2). However, the
claims in the body of the Complaint are not connected with any of these individuals. Plaintiff
seeks injunctive relief and monetary damages. (Doc. 1, p. 6).
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.
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(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
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).
The Complaint does not survive preliminary review under this standard.
The Complaint
Plaintiff’s statement of claim is incredibly vague. (Doc. 1, p. 5). First, Plaintiff alleges
that he was electrocuted because of negligent maintenance in a housing unit. Id. He contends that
the injury associated with this electrocution is ongoing and has been ignored. Id. No further
information is provided and the claim is not directed at any particular individual. Id. Plaintiff
also lodges generic allegations against staff working in the healthcare unit. Id. He complains that
healthcare staff employees refuse to treat preexisting conditions, charge for follow-up visits, and
treat him as “less than human.” Finally, Plaintiff complains that his grievances “to resolve
concerns were ignored or delayed until emergency care was needed.”
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Discussion
Plaintiffs are required to associate specific defendants with specific claims, so that
defendants are put on notice of the claims brought against them and so they can properly answer
the complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); FED. R. CIV. P.
8(a)(2). See also Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003) (a “short and plain”
statement of the claim suffices under FED. R. CIV. P. 8 if it notifies the defendant of the principal
events upon which the claims are based). Where a plaintiff has not included a defendant in his
statement of the claim, the defendant cannot be said to be adequately put on notice of which
claims in the complaint, if any, are directed against him. Furthermore, merely invoking the name
of a potential defendant is not sufficient to state a claim against that individual. See Collins v.
Kibort, 143 F.3d 331, 334 (7th Cir. 1998). Section 1983 creates a cause of action based on
personal liability and predicated upon fault; thus, “to be liable under § 1983, the individual
defendant must have caused or participated in a constitutional deprivation.” Pepper v. Village of
Oak Park, 430 F.3d 805, 810 (7th Cir. 2005) (internal quotations and citations omitted). In order
to state a claim against a defendant, a plaintiff must describe what each named defendant did (or
failed to do), that violated the plaintiff's constitutional rights.
In the instant case, the Complaint does not include facts sufficient to suggest a violation
of Plaintiff’s constitutional rights. It is possible that the failure to treat Plaintiff’s alleged injury
(electrocution) and/or the injury itself amount to a constitutional violation. However, at present,
the allegations are simply too vague to form an arguable basis for any claim. The same is true of
Plaintiff’s complaints about the healthcare unit and any alleged failure to respond to his
grievances. Additionally, although three Defendants are identified in the caption of the
Complaint, the Complaint does not associate any of the Defendants with any of the alleged
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constitutional violations. As such, the Complaint fails to state a claim under § 1983 as to any of
the identified Defendants.
In summary, Plaintiff's complaint does not survive review under § 1915A. Accordingly,
the Complaint shall be DISMISSED without prejudice. Plaintiff shall be allowed an opportunity
to submit an amended complaint, to correct the deficiencies in his pleading. Specifically, the
amended complaint must provide enough detail to put each Defendant on notice as to the claims
directed against him or her. Plaintiff should describe the “who, what, why, where, and how” that
form the basis of his claims and he must associate specific claims with specific defendants.
If the amended complaint still fails to state a claim, or if Plaintiff does not submit an
amended complaint, the entire case shall be dismissed with prejudice, and the dismissal shall
count as a strike pursuant to § 1915(g). The amended complaint shall be subject to review under
§ 1915A.
Pending Motions
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 3). The dismissal of the
Complaint without prejudice raises the question of whether Plaintiff is capable of drafting a
viable amended complaint without the assistance of counsel.
Plaintiff’s Motion states that he has some college education and that he does not know
how to proceed in a legal action. Plaintiff indicates that he has been unable to obtain an attorney
on his own because he is indigent and incarcerated. Plaintiff does not provide further detail with
regard to his attempts to retain counsel. Plaintiff also provides a list of medications he is
currently taking. However, Plaintiff does not suggest that any of the medications cause any sort
of cognitive impairment.
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There is no constitutional or statutory right to counsel in federal civil cases. Romanelli v.
Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v. Doughty, 433 F.3d 1001, 1006
(7th Cir. 2006). Nevertheless, the district court has discretion under 28 U.S.C. § 1915(e)(1) to
recruit counsel for an indigent litigant. Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866–
67 (7th Cir. 2013).
When a pro se litigant submits a request for assistance of counsel, the Court must first
consider whether the indigent plaintiff has made reasonable attempts to secure counsel on his
own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt v. Mote, 503 F.3d 647,
654 (7th Cir. 2007)). If so, the Court must examine “whether the difficulty of the case—
factually and legally—exceeds the particular plaintiff's capacity as a layperson to coherently
present it.” Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655). “The question...is whether
the plaintiff appears competent to litigate his own claims, given their degree of difficulty, and
this includes the tasks that normally attend litigation: evidence gathering, preparing and
responding to motions and other court filings, and trial.” Pruitt, 503 F.3d at 655. The Court also
considers such factors as the plaintiff's “literacy, communication skills, education level, and
litigation experience.” Id.
In the instant case, the minimal information provided does not allow the Court to
determine if Plaintiff has made reasonable attempts to obtain counsel on his own. Further,
Plaintiff’s level of education and pleadings filed to date do not suggest that the recruitment of
counsel is warranted. At this juncture, the Court is merely concerned with whether this action
can get out of the gate, so to speak. All that is required is for Plaintiff to provide an amended
complaint that includes sufficient factual content regarding the alleged constitutional violations
and the individuals associated with the alleged violations. Plaintiff alone has knowledge of these
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facts, and no legal training or special knowledge is required to set them down on paper.
Therefore, the Motion for Recruitment of Counsel (Doc. 3) is DENIED without prejudice. The
Court will remain open to appointing counsel as the case progresses.
Disposition
IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice.
Plaintiff is GRANTED leave to file a “First Amended Complaint” on or before
September 13, 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).
Should Plaintiff decide to file a First Amended Complaint, it is strongly recommended
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-558MJR).
To enable Plaintiff to comply with this Order, the CLERK is DIRECTED to mail
Plaintiff a blank civil rights complaint form.
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
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28 U.S.C. § 1915(e)(2).
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 remains due and payable,
regardless of whether Plaintiff elects to file a First Amended Complaint. See 28 U.S.C.
§ 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).
IT IS SO ORDERED.
DATED: August 16, 2017
s/ Micheal J. Reagan
Chief Judge
United States District Court
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