Wilbourn v. Centralia Correctional Center et al

Filing 12

ORDER DISMISSING CASE with prejudice for failure to state a claim upon which relief may be granted and/or legal frivolity. This dismissal shall count as one of Plaintiff's three allotted strikes within the meaning of 28 U.S.C. § 1915(g). Signed by Judge David R. Herndon on 2/14/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
D’MARCO WILBOURN,
#B-88922,
Plaintiff,

Case No. 17 cv–882 DRH

vs.
CENTRALIA CORRECTIONAL
CENTER,
WARDEN, and
ILLINOIS DEPARTMENT OF
CORRECTIONS,
Defendants.

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
(“Centralia”).

In his First Amended Complaint, Plaintiff claims that he was

sexually assaulted by a fellow inmate. (Doc. 11). This case is now before the
Court for a preliminary review of the First Amended 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
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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, 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 First Amended Complaint and any supporting
exhibits, the Court finds that the First Amended Complaint, and this action, are
subject to dismissal.
The First Amended Complaint
In his First Amended Complaint (Doc. 11), Plaintiff makes the following
allegations: on March 16, 2015, Plaintiff was raped at Centralia by his cellmate
Marcus Riddick.

(Doc. 11, p. 5).

That day, Plaintiff reported the incident to

Centralia Internal Affairs, and “an investigation and rape kit was performed on
[him].” Id. Plaintiff questions why he was “placed in a cell with a predator” with a

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history of predatory behavior by Centralia officials. He also notes that officials
should consider the backgrounds of inmates in order to place them with
compatible cellmates to avoid such attacks. Id.
After he was raped and while he was waiting on the rape kit lab results,
Plaintiff stayed in the Centralia Healthcare Unit for nearly a month and a half,
“dealing with the anal pain of being penetrated, and the emotional[] mental state
of just being sexually assaulted.” Id. Plaintiff suffers from depression as a result
of the incident. (Doc. 11, p. 7). “After nearly two years from the incident, the
DNA from Riddick has come back positive.”

Id.

Plaintiff seeks monetary

damages from the defendants. (Doc. 11, p. 8).
Discussion
The Court begins its § 1915A review with a note about the parties at issue
in this case.

First, Plaintiff has named “Dept. of Corrections,” presumably

meaning the Illinois Department of Corrections, as a defendant.

He has also

named Centralia Correctional Center. Both of these defendants were dismissed
with prejudice in this Court’s previous Order (Doc. 10) dismissing the original
Complaint. For that reason, and for the reasons articulated in the previous Order,
these defendants will once again be dismissed with prejudice from this action.
Based on the allegations of the First Amended Complaint, the Court finds it
convenient to designate a single count in this pro se action. 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

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counts does not constitute an opinion regarding their merit.
Count 1 –

Warden failed to protect Plaintiff by allowing him to be placed
in a cell with a “predator” and failing to ensure he was in a safe
environment, resulting in Plaintiff being raped on March 16,
2015.

As discussed in more detail below, Count 1 will be dismissed with
prejudice for failure to state a claim upon which relief may be granted and/or legal
frivolity. Any other intended claim that has not been recognized by the Court is
considered dismissed with prejudice as inadequately pleaded under the Twombly
pleading standard.
The Court notes that, like with his original Complaint, 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 First Amended
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 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)
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(citations omitted). The Warden of Centralia will therefore be dismissed. Plaintiff
has also failed to allege that any appropriate § 1983 defendant is personally
responsible for the deprivation of a constitutional right. Like with his original
Complaint, this is grounds for dismissal of this action.
The failure of an amended complaint to state a colorable constitutional
claim begs the question, should the plaintiff be given another opportunity to plead
his case? Leave to amend need not be granted when a party has had multiple
opportunities to amend but failed to cure a defective claim, Agnew v. NCAA, 683
F.3d 328, 347 (7th Cir. 2012), or when further amendment would be futile,

McCree v. Grissom, 657 F.3d 623, 624 (7th Cir. 2011). “[F]utile repleadings
include restating the same facts using different language, Wakeen v. Hoffman

House, Inc., 724 F.2d 1238, 1244 (7th Cir. 1983), reasserting claims previously
determined, id., failing to state a valid theory of liability, Verhein v. South Bend

Lathe, Inc., 598 F.2d 1061, 1063 (7th Cir. 1979), and the inability to survive a
motion to dismiss, Glick v. Koenig, 766 F.2d 265, 268 (7th Cir. 1985).” Garcia v.

City of Chicago, Ill., 24 F.3d 966, 970 (7th Cir. 1994).
Plaintiff has now twice failed to state a claim based on his assertion that the
attack on him by another inmate was the fault of a prison official. Plaintiff has
also restated the same facts in his First Amended Complaint that he alleged in his
original Complaint, with little difference.

As explained above, an amended

complaint that states the same facts using different language will generally be
futile. Garcia v. City of Chicago, Ill., 24 F.3d 966, 970 (7th Cir. 1994).

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Further, Plaintiff noted in the First Amended Complaint that his claims are
specifically based on his placement in a cell with a predator as opposed to
someone with a background compatible to his. 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 a 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. A 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). “A
generalized risk of violence is not enough, for prisons are inherently dangerous
places.”

Wilson v. Ryker, 451 F. App’x 588, 589 (7th Cir. 2011) (citing Brown v.

Budz, 398 F.3d 904, 909, 913 (7th Cir. 2005); Riccardo v. Rausch, 375 F.3d 521,
525 (7th Cir. 2004). 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 twice failed to allege that any prison official, much less the

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Warden of Centralia as the only eligible defendant, was aware of a substantial,
specific, and impending threat to his safety from his cellmate. His allegations
instead suggest that he feels that prison officials should proactively limit danger to
inmates by placing them in cells with compatible inmates, and their failure to do
this resulted in his being placed in a cell with a predatory inmate prior to his
attack. These allegations do not give rise to a constitutional claim. While the
Court is not without sympathy for Plaintiff’s plight, it does not find that a state
actor can be implicated for the alleged attack by Plaintiff’s former cellmate.
Therefore, the First Amended Complaint, along with this action, will be dismissed
with prejudice.
Disposition
IT IS HEREBY ORDERED that the First Amended Complaint (Doc. 11),
and this action, are DISMISSED with prejudice for failure to state a claim upon
which relief may be granted and/or legal frivolity. This dismissal shall count as
one of Plaintiff’s three allotted “strikes” within the meaning of 28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED that the ILLINOIS DEPARTMENT OF
CORRECTIONS, CENTRALIA CORRECTIONAL CENTER, and WARDEN are
DISMISSED with prejudice for the reasons stated above.
Plaintiff’s 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.

See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.
1998).

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If Plaintiff wishes to appeal this Order, he may file a notice of appeal with
this Court within thirty days of the entry of judgment. FED. R. APP. 4(A)(4). If
Plaintiff does choose to appeal, he will be liable for the $505.00 appellate filing fee
irrespective of the outcome of the appeal. See FED. R. APP. 3(e); 28 U.S.C. §
1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v.

Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockish, 133 F.3d 464,
467 (7th Cir. 1998). Moreover, if the appeal is found to be nonmeritorious,
Plaintiff may also incur another “strike.” A proper and timely motion filed
pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal
deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed no more than
twenty-eight (28) days after the entry of the judgment, and this 28-day deadline
cannot be extended.
The Clerk’s Office is DIRECTED to close this case and enter judgment
accordingly.
IT IS SO ORDERED.

Judge Herndon
2018.02.14
09:45:50 -06'00'
UNITED STATES DISTRICT JUDGE

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