Rivera v. Indiana State of et al

Filing 9

OPINION AND ORDER DIRECTING the Clerk to place this cause number on a blank Prisoner Complaint Pro Se 14 (INND Rev. 2/20) and send it to Victor Rivera; GRANTING Victor Rivera until 2/8/2021 to file an amended complaint on that form; and CAUTIONING V ictor Rivera that if he does not respond by that deadline, this case will be dismissed without further notice pursuant to 28 U.S.C. § 1915A because the current complaint does not state a claim. Signed by Judge Damon R Leichty on 1/7/2021. (Attachments: # 1 Complaint)(mrm)

USDC IN/ND case 3:20-cv-00861-DRL-MGG document 9 filed 01/07/21 page 1 of 3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
VICTOR RIVERA,
Plaintiff,
v.

CAUSE NO. 3:20-CV-861-DRL-MGG

STATE OF INDIANA et al.,
Defendants.
OPINION & ORDER
Victor Rivera, a prisoner without a lawyer, filed a complaint against three
defendants. A filing by an unrepresented party “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) (quotation
marks and citations omitted). Under 28 U.S.C. § 1915A, the court still must review the
merits of a prisoner complaint and dismiss it if the action is frivolous or malicious, fails
to state a claim upon which relief may be granted, or seeks monetary relief against an
immune defendant.
Mr. Rivera alleges that, on September 15, 2020, when he was on his way to take a
shower and stopped to talk to an inmate through a cuff port, another inmate from a
different range walked past him, turned around, and stabbed him in the left side of his
head, neck, and back. Mr. Rivera states that he tried to run away but he slipped and fell
on his back while the inmate continued to stab him. He managed to get up and run to his
room even though blood was gushing from his face, head, neck, and back.

USDC IN/ND case 3:20-cv-00861-DRL-MGG document 9 filed 01/07/21 page 2 of 3

Mr. Rivera was then rushed to the hospital by helicopter. Doctors used nine staples
in his head and twelve stiches on his left temple to treat his wounds. When he returned
to the prison, he was placed in the same housing unit but in a different room on the other
side of the unit. Mr. Rivera states he continued to cough up blood but had no way of
contacting prison staff because he did not have an emergency call box in his room. He
states that, at one point, he told officers he needed a nurse, but no one helped him.
Furthermore, he claims that he needed to shower and have his wounds cleaned daily, but
the prison’s medical staff neither checked on him nor cleaned his wounds. Given these
events, Mr. Rivera asserts he was subjected to cruel and unusual punishment in violation
of his Eighth Amendment rights.
While his allegations are concerning, Mr. Rivera names only the State of Indiana,
Indiana Attorney General Curtis Hill, and “M.C.F. Administration Officers @ Large” as
defendants in this lawsuit. The Eleventh Amendment bars his claim for damages against
the State of Indiana. De Lima Silva v. Dep’t of Corr., 917 F.3d 546, 565 (7th Cir. 2019). With
respect to the Attorney General, there is no indication from the complaint that he was
personally involved in these events or personally aware that Mr. Rivera was at risk of
being attacked by another inmate. He cannot be held liable simply because he oversees
law enforcement operations within the state. See Burks v. Raemisch, 555 F.3d 592, 596 (7th
Cir. 2009). As to the defendants “M.C.F. Administration Officers @ Large,” Mr. Rivera’s
case cannot proceed against unnamed defendants. See Wudtke v. Davel, 128 F.3d 1057, 1060
(7th Cir. 1997) (“[I]t is pointless to include lists of anonymous defendants in federal court;
this type of placeholder does not open the door to relation back under Fed. R. Civ. P. 15,
2

USDC IN/ND case 3:20-cv-00861-DRL-MGG document 9 filed 01/07/21 page 3 of 3

nor can it otherwise help the plaintiff.”). Therefore, the current complaint does not state
a viable claim against any defendant.
Though the complaint does not state a claim, Mr. Rivera will be given
an opportunity to replead his claims. Luevano v. WalMart Stores, Inc., 722 F.3d 1014, 102223, 1025 (7th Cir. 2013); Loubser v. Thacker, 440 F.3d 439, 443 (7th Cir. 2006). In the
amended complaint, he should explain in his own words what happened, when it
happened, where it happened, who was involved, and how he was personally injured,
providing as much detail as possible.
For these reasons, the court:
(1) DIRECTS the clerk to place this cause number on a blank Prisoner Complaint
Pro Se 14 (INND Rev. 2/20) and send it to Victor Rivera;
(2) GRANTS Victor Rivera until February 8, 2021 to file an amended complaint on
that form; and
(3) CAUTIONS Victor Rivera that if he does not respond by that deadline, this case
will be dismissed without further notice pursuant to 28 U.S.C. § 1915A because the
current complaint does not state a claim.
SO ORDERED.
January 7, 2021

s/ Damon R. Leichty
Judge, United States District Court

3