Wilbourn v. Centralia Correctional Center et al

Filing 10

IT IS HEREBY ORDERED that the Complaint (Doc. 1) is DISMISSED without prejudice for failure to state a claim upon which relief may be granted and/or legal frivolity. IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff sha ll file a First Amended Complaint, stating any facts which may exist to support a cognizable § 1983 claim, within 28 days of the entry of this order (on or before November 22, 2017). Should Plaintiff fail to file his First Amended Complaint wit hin 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. (Amended Pleadings due by 11/22/2017) Marcus Riddick, Warden (Centralia Correctional Center), Centralia Correctional Center and IDOC terminated. Signed by Judge David R. Herndon on 10/25/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
D’MARCO WILBOURN,
#B-88922,
Plaintiff,
vs.
CENTRALIA CORRECTIONAL
CENTER,
WARDEN,
ILLINOIS DEPARTMENT OF
CORRECTIONS, and
MARCUS RIDDICK,
Defendants.

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Case No. 17−cv–882−DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff D’Marco Wilbourn, an inmate in East Moline Correctional
Center, brings this action pursuant to 42 U.S.C. § 1983 for deprivations of his
constitutional rights that allegedly occurred at Centralia Correctional Center.
In his Complaint, Plaintiff claims that he was sexually assaulted by Defendant
Riddick and did not receive the rape kit lab results from the assault for almost
two years. (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–
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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).
Upon careful review of the Complaint and any supporting exhibits, the
Court finds that the Complaint is subject to dismissal.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations: on
March 16, 2015 while Plaintiff was incarcerated at Centralia Correctional
Center, Defendant Marcus Riddick raped Plaintiff. (Doc. 1, p. 4). Riddick was
Plaintiff’s cellmate at the time.

Id.

Plaintiff did not file a grievance on this

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issue,1 but he did report the incident to internal affairs at Centralia. (Doc. 1,
pp. 3, 5). Riddick was placed in segregation under investigative status. (Doc.
1, p. 5). Plaintiff was also placed under investigative status in the Centralia
Health Care Unit. Id. This confinement lasted for a month and a half, and was
to last until the lab results from the rape kit came back with the DNA of
Plaintiff’s assailant.

Id.

After Plaintiff had spent a month and a half in

confinement, he was transferred to Graham Correctional Center. Id. He was
then paroled on November 5, 2015 without having received the lab results from
the rape kit. Id. Plaintiff was waiting to sue until he got positive results from
the rape kit showing that Riddick was the assailant. Id.
Plaintiff is now incarcerated at East Moline Correctional Center. Id. On
June 12, 2017, he received the results of the rape kit that confirmed the DNA
that was tested was that of Riddick. Id. Plaintiff seeks justice “for everything
Inmate Marcus Riddick put [him] through physically and mentally.”

Id.

Plaintiff seeks monetary damages. (Doc. 1, p. 6).
Discussion
The Court begins its § 1915A review with a note about the parties at
issue in this case.

First, Plaintiff has named the Illinois Department of

Corrections (“IDOC”) as a defendant. His claims against it are barred, however,
because IDOC, as a state agency, is not a “person” that may be sued under §
1983. Thomas v. Illinois, 697 F.3d 612, 613 (7th Cir. 2012) (citing Will v. Mich.

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The Court suspects that Plaintiff may have failed to exhaust his administrative remedies prior to filing this suit,
based on his claim that he did not file any grievances on the issue. However, because the Court is dismissing
Plaintiff’s Complaint on other grounds, it will not delve into the exhaustion issue.

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Dep't of State Police, 491 U.S. 58, 70–71 (1989)); see also 42 U.S .C. § 1983
(“Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress . . . .”).

For the same reason, Plaintiff cannot maintain a suit for

damages against Centralia Correctional Center, as it is a division of IDOC.
Plaintiff has also included Marcus Riddick, the inmate who allegedly
raped him, as a defendant in this lawsuit. A plaintiff cannot proceed with a
federal claim under § 1983 against a non-state actor. See Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 50 (1999); Gayman v. Principal Fin. Servs., Inc.,
311 F.3d 851, 852-53 (7th Cir. 2003).

Riddick was a prisoner during the

relevant time period, not a state actor.
For the above reasons, Riddick will be dismissed with prejudice from this
lawsuit, along with the Illinois Department of Corrections and Centralia
Correctional Center.
Finally, Plaintiff names the Warden of Centralia as a defendant in this
case, but he has failed to include specific allegations against him or her in the
body of his Complaint. 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
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Corp. v. Twombly, 550 U.S. 544, 555 (2007); FED. R. CIV. P. 8(a)(2). Where a
plaintiff has not included a defendant in his statement of 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). And in the case of
those defendants in supervisory positions, the doctrine of respondeat superior
is not applicable to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740
(7th Cir. 2001) (citations omitted). The Warden of Centralia will therefore be
dismissed without prejudice.
Plaintiff has failed to allege that any appropriate § 1983 defendant is
personally responsible for the deprivation of a constitutional right. He has also
not expressly stated what constitutional right he believes was violated in
general.

He understandably focuses much of his attention on the alleged

sexual assault, but because Riddick, his alleged assailant, is not a state actor,
any claim he might be trying to assert against him is legally frivolous in this
context.
Plaintiff may also be attempting to bring a claim based on the nearly twoyear delay in receiving the results of his rape kit. Plaintiff has not associated
any defendants with this claim, however, nor does he explain how the delay
constitutes a constitutional deprivation. He does not claim that his health was
negatively impacted by the delay. Further, if he sought to bring a claim against
prison officials for failing to adequately investigate the assault, this claim would
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necessarily fail. The failure to properly handle a grievance or investigation is
not the type of conduct that independently violates the United States
Constitution.

See, e.g., George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007)

(“Ruling against a prisoner on an administrative complaint does not cause or
contribute to the violation.”); Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir.
2005) (prisoner had no claim for “failure to investigate” a claim because there
was no “protected liberty interest” in having the grievance “resolved to his
satisfaction”).
For the above reasons, Plaintiff has failed to state a claim upon which
relief may be granted. The Complaint will therefore be dismissed.
Pending Motions
Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) is 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 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
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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
without prejudice.
Plaintiff's Motion for Service of Process at Government Expense (Doc. 4)
is DENIED as moot.

If Plaintiff’s case ultimately survives threshold review,

waivers of service of summons will be issued and served on any relevant
defendant. Plaintiff is advised that it is not necessary for a litigant proceeding
in forma pauperis to file a motion requesting service of process. The Clerk will
issue summons and the Court will direct service for any surviving complaint.
Plaintiff’s “Motion of Freedom of Information Act” (Doc. 8) is DENIED.
The judicial branch is exempt from the Freedom of Information Act.

See 5

U.S.C. §§ 551(1)(B), 552; U.S. v. Casas, 376 F.3d 20 (1st Cir. 2004); Lovell v.
Alderete, 630 F.2d 428, 434 n. 10 (5th Cir. 1980).

The Court notes that

Plaintiff may choose to file a motion for status if at any time he is unsure as to
the status of this case.
Disposition
IT IS HEREBY ORDERED that the Complaint (Doc. 1) is DISMISSED
without prejudice for failure to state a claim upon which relief may be granted
and/or legal frivolity.
IT IS FURTHER ORDERED that the ILLINOIS DEPARTMENT OF
CORRECTIONS, CENTRALIA CORRECTIONAL CENTER, and MARCUS
RIDDICK are DISMISSED with prejudice for the reasons stated above.
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IT IS FURTHER ORDERED that WARDEN is DISMISSED without
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 a First Amended Complaint, stating any facts which
may exist to support a cognizable § 1983 claim, within 28 days of the entry of
this order (on or before November 22, 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) because the
dismissal herein is for failure to state a claim upon which relief may be granted
and/or legal frivolity.
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-882-DRH). 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
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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 one another 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 a 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 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
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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.

Judge Herndon
2017.10.25
12:52:24 -05'00'

IT IS SO ORDERED.

UNITED STATES DISTRICT JUDGE

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