Peavy v. Peoples et al

Filing 10

OPINION AND ORDER DENYING 9 MOTION For Appointment Of Counsel by Plaintiff Willie R Peavy. This case is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915A. Signed by Judge Theresa L Springmann on 8/29/16. (cc: Willie R Peavy). (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
WILLIE R. PEAVY,
Plaintiff,
v.
WAYNE PEOPLES, et al.,
Defendants.

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CAUSE NO.: 3:16-CV-165 TLS

OPINION AND ORDER
Willie R. Peavy, a pro se prisoner, filed an Amended Complaint [ECF No. 8] alleging
that the Defendants violated a contract with Aramark, a food service provider, by allowing an
Aramark employee to sign a Conduct Report charging him with violating a prison rule. “A
document filed pro se is to be liberally construed, and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers . . . .”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation marks omitted).
Nevertheless, pursuant to 28 U.S.C. § 1915A, this Court must review the Amended Complaint
and dismiss it if the action is frivolous or malicious, fails to state a claim, or seeks monetary
relief against a Defendant who is immune from such relief. “In order to state a claim under [42
U.S.C.] § 1983 a plaintiff must allege: (1) that defendants deprived him of a federal
constitutional right; and (2) that the defendants acted under color of state law.” Savory v. Lyons,
469 F.3d 667, 670 (7th Cir. 2006).
Here, the Amended Complaint does not state a claim because the violation of a contract
does not constitute the violation of a Constitutional right. Beyond that, the Constitution does not
prohibit private contract employees from operating an entire prison, which inherently requires
that they discipline inmates for breaking the rules. See Pischke v. Litscher, 178 F.3d 497, 500

(7th Cir. 1999) (describing as “thoroughly frivolous” the argument that it is unconstitutional to
confine a convicted prisoner in a prison owned by a private firm). Therefore, this Amend
Complaint does not state a claim and it must be dismissed.
It is usually necessary “to give pro se litigants one opportunity to amend after dismissing
a complaint. . . . [but] that’s unnecessary where, as here, it is certain from the face of the
complaint that any amendment would be futile or otherwise unwarranted.” Carpenter v. PNC
Bank, Nat. Ass’n, No. 633 F. App’x. 346, 348 (7th Cir. Feb. 3, 2016) (unpublished order)
(internal citation and quotation marks omitted); see also Luevano v. Wal-Mart Stores, Inc., 722
F.3d 1014, 1024 n.3 (7th Cir. 2013); Hukic v. Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir.
2009) (“[C]ourts have broad discretion to deny leave to amend where . . . the amendment would
be futile.”).
For these reasons, this case is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C.
§ 1915A.
The Court also notes that, on July 8, 2016, the Plaintiff filed a Motion for Appointment of
Counsel [ECF No. 9]. Even overlooking that the Plaintiff has failed to show any effort to obtain
counsel on his own, see Olson v. Morgan, 750 F.3d 708, 710–11 (7th Cir. 2014), the Plaintiff has
ably and adequately stated the basis of his claim, Perez v. Fenoglio, 792 F.3d 768, 784 (7th Cir.
2015) (quoting Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc)). Accordingly, the
Motion for Appointment of Counsel [ECF No. 9] is DENIED.
SO ORDERED on August 29, 2016.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

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