Hood, Sr. v. Lamb et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 10/26/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

CURTIS R. HOOD, SR.,

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Plaintiff,
vs.
NICHOLAS R. LAMB,
BACH,
OCHS,
LENCE, and
SHANER
Defendants.

Case No. 17−cv–0955−MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Curtis R. Hood, Sr., an inmate in Lawrence Correctional Center, brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff
requests money damages and costs. 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
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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
On April 9, 2017, Plaintiff approached correctional officer Shaner and asked if he could
move Plaintiff or his cell mate. (Doc. 1, p. 5). Plaintiff reported that they were not getting
along. Id. Shaner said he would contact the Placement Office on Plaintiff’s behalf. Id. Shaner
came by later and told Plaintiff that no one was answering the Placement phone, but he’d keep
trying. Id. Plaintiff wrote a grievance about this and had it in his hand on April 10, 2017 when
he ran into Bach on the way to lunch. Id. Plaintiff explained his situation to Bach, and Bach
asked Plaintiff to give him until noon to look into it. Id. Plaintiff never heard back from Bach so
on the next shift he spoke to Lt. Ochs. Ochs responded “nothing is going to happen.” Id.
Plaintiff told Ochs that he was setting up one of them to get hurt. Id. Ochs didn’t respond; he
just left. Id. When Plaintiff returned to his cell, he was assaulted by his cellmate. Id. Plaintiff
received 6 staples in his head as a result of the attack. Id.
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into 1 count. The parties and the Court will use this designation in all future pleadings

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and orders, unless otherwise directed by a judicial officer of this Court. The following claim
survives threshold review:
Count 1 – Shaner, Bach, and Ochs failed to protect Plaintiff from an attack by his
cellmate in violation of the Eighth Amendment.
As to Plaintiff’s Count 1, 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). In other words,
Defendants had to know that there was a substantial risk that the individual who attacked
Plaintiff would do so, yet fail 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)).
Here Plaintiff has alleged that he told 3 guards that he was not getting along with his
cellmate. Plaintiff’s claim that he was celled with another inmate who threatened to attack him
is a plausible allegation that he was incarcerated under conditions posing a substantial risk of
serious harm. Moreover, he alleges that he specifically identified the threat to the guards, but
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none of them moved him out of his cell. On these facts, Plaintiff has made a plausible allegation
that Shaner, Bach, and Ochs failed to protect him in violation of the Eighth Amendment.
However, Plaintiff’s claims against Lamb and Lence must be dismissed at this time. The
Court is unable to ascertain what claims, if any, Plaintiff has against these Defendants.
The reason that plaintiffs, even those proceeding pro se, for whom the Court is required
to liberally construe complaints, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), are required
to associate specific defendants with specific claims is so these defendants are put on notice of
the claims brought against them and so they can properly answer the complaint. “Federal Rule
of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that
the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Thus, 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) (“A plaintiff cannot state a
claim against a defendant by including the defendant’s name in the caption.”).
Because Plaintiff has not listed Defendants Lamb and Lence elsewhere in his Complaint,
he has not adequately stated claims against these individuals, or put them on notice of any claims
that Plaintiff may have against them. For this reason, Defendants Lamb and Lence will be
dismissed from this action without prejudice.
Pending Motions

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Plaintiff’s Motion for Recruitment of Counsel will be addressed by Magistrate Judge
Stephen C. Williams by separate order. (Doc. 3).
Disposition
IT IS HEREBY ORDERED that Count 1 against Bach, Ochs, and Shaner survives
threshold review. Defendants Lamb and Lence are DISMISSED without prejudice for failure
to state a claim.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants Bach, Ochs, and
Shaner: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2)
Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy
of the complaint, and this Memorandum and Order to each Defendant’s place of employment as
identified by Plaintiff. If a Defendant fails to sign and return the Waiver of Service of Summons
(Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take
appropriate steps to effect formal service on that Defendant, and the Court will require that
Defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of
Civil Procedure.
IT IS FURTHER ORDERED that, with respect to a Defendant who no longer can be
found at the work address provided by Plaintiff, the employer shall furnish the Clerk with the
Defendant’s current work address, or, if not known, the Defendant’s last-known address. This
information shall be used only for sending the forms as directed above or for formally effecting
service. Any documentation of the address shall be retained only by the Clerk. Address
information shall not be maintained in the court file or disclosed by the Clerk.
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).

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Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Stephen C. Williams for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Stephen C.
Williams 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).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give
security for the same, the applicant and his or her attorney were deemed to have entered into a
stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court,
who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff.
Local Rule 3.1(c)(1)
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).

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IT IS SO ORDERED.

DATED: October 26, 2017

s/ MICHAEL J. REAGAN
U.S. Chief District Judge

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