Guzman-Rivadeneira v. Department of Homeland Security et al

Filing 11

ORDER signed by Judge Rudolph T. Randa on 7/1/2015. 2 Plaintiff's MOTION for Leave to Proceed in forma pauperis GRANTED; 2 Plaintiff's MOTION to Appoint Counsel DENIED. Plaintiff MAY FILE amended complaint by 7/31/2015, failure to do so will result in dismissal of action for failure to prosecute. Sheriff of McHenry County, Illinois to collect $85.11 balance of filing fee from plaintiff's prison trust account. (cc: all counsel, via mail to Felix Guzman Rivadeneira at McHenry County Jail, McHenry County Sheriff)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
FELIX GUZMAN RIVADENEIRA,
On behalf of the thousands of federal
detainees and their families here in the
United States of America and
all over the world,
Plaintiff,
-vs-

Case No. 15-CV-551

DEPARTMENT OF HOMELAND
SECURITY, et al.,
Defendants.

DECISION AND ORDER
Dr. Felix Guzman Rivadeneira seeks to bring a class action “on
behalf of the thousands of federal detainees and their families here in the
United States of America and all over the world.” He has filed this action
under 42 U.S.C. § 1983, alleging that he and those he purports to
represent have suffered civil rights violations. This matter is before the
Court on the plaintiff’s motions to proceed in forma pauperis and to
appoint counsel and for screening of the plaintiff’s complaint.
The Prison Litigation Reform Act gives courts discretion to allow
prisoners to proceed with their lawsuits without pre-paying the $350 filing
fee, as long as they comply with certain requirements. 28 U.S.C. §1915.

One of those requirements is that the prisoner pay an initial partial filing
fee. On June 5, 2015, the Court assessed an initial partial filing fee of
$264.89. The plaintiff paid that fee on June 12, 2015. Accordingly, the
Court grants the plaintiff’s motion to proceed in forma pauperis.
Federal law requires that the Court dismiss a complaint if a
prisoner raises claims that are legally “frivolous or malicious,” that fail to
state a claim upon which relief may be granted, or that seek monetary
relief from a defendant who is immune from such relief.

28 U.S.C. §

1915A(b).
A complaint is frivolous or malicious if it has no arguable basis in
law or fact, or if the petitioner is unable to make any rational argument in
law or fact that would entitle him to relief. Denton v. Hernandez, 504 U.S.
25, 31 (1992). The Court has the authority to dismiss any claim based on
an indisputably meritless legal theory and any claim whose factual
contentions are clearly baseless.
To state a cognizable claim under the federal notice pleading
system, a plaintiff must provide a “short and plain statement of the claim
showing that [he] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). A plaintiff
does not need to plead specific facts, and his statement need only “give the
defendant fair notice of what the . . . claim is and the grounds upon which
-2-

it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint that offers “labels
and conclusions” or “formulaic recitation of the elements of a cause of
action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). To state a claim, a complaint must contain
sufficient factual matter, accepted as true, “that is plausible on its face.”
Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint allegations
“must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first, “identifying pleadings
that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support his
legal conclusions with factual allegations. Id. If there are well-pleaded
factual allegations, courts must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must
-3-

allege that the defendant(s): 1) deprived him of a right secured by the
Constitution or laws of the United States; and 2) acted under color of state
law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861
(7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980).
The plaintiff is currently incarcerated at McHenry County Jail in
Woodstock, Illinois, although he was incarcerated in the Kenosha County
Detention Center when he filed his complaint. The plaintiff is suing the
Department of Homeland Security, the Department of Immigration
Customs Enforcement (ICE), the United States Attorney General, the
Chief Operator of the Detention Operation Manual, all the wardens of the
jails and detention centers contracted by ICE, all the service processing
centers, all the contract detention facilities, and all the intergovernmental
service agreement facilities. He purports to bring this suit on behalf of
himself and thousands of federal detainees and their families worldwide.
The plaintiff’s complaint contains no factual allegations. Instead, it
is filled only with legal conclusions that detainees “have been deprive[d]
basic human needs,” “have been a subject of deliberate indifference” to
their medical needs, have been “denied due process of law,” “have been
suffering physical, sexual and verbal abuse,” etc. (ECF No. 1 at 6-7.) In
-4-

most cases, the plaintiff does not even clarify which, if any, of the
defendants is responsible for the vaguely described misconduct. Moreover,
the plaintiff must identify individual defendants and specify the manner
in which each particular defendant’s actions (or inaction) violated the
plaintiff’s constitutional rights. Vance v. Peters, 97 F.3d 987, 991 (7th Cir.
1996) (Section 1983 “creates a cause of action based on personal liability
and predicated upon fault; thus liability does not attach unless the
individual defendant caused or participated in a constitutional violation”).
The doctrine of respondeat superior (supervisory liability) does not apply
to actions filed under Section 1983, nor does Section 1983 create collective
or vicarious responsibility. See Pacelli v. deVito, 972 F.2d 871, 877 (7th
Cir. 1992). Therefore, the complaint does not state an actionable claim for
relief.
The plaintiff has also filed a motion asking the Court to appoint a
lawyer to represent him. In a civil case, a court has discretion to decide
whether to recruit a lawyer for someone who cannot afford one. Navejar v.
Iyola, 718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C § 1915(e)(1); Ray v.
Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). Before
the court makes that decision, though, a plaintiff has to show the Court
that he has made a reasonable effort to hire private counsel on his own.
-5-

Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). In this district, a plaintiff
may satisfy that obligation by providing the Court with at least three
names of attorneys who he has contacted, along with the dates of the
contact and, if available, any responses.
Only after the plaintiff shows that he’s made that reasonable
attempt to hire counsel will the Court decide “whether the difficulty of the
case — factually and legally — exceeds the particular plaintiff’s capacity
as a layperson to coherently present it.” Navejar, 718 F.3d at 696 (citing
Pruitt, 503 F.3d at 655). To decide that, the Court looks, not only at the
plaintiff’s ability to try his case, but also at his ability to perform other
“tasks that normally attend litigation,” such as “evidence gathering” and
“preparing and responding to motions.” Id.
In this case, the plaintiff has not provided evidence that he’s made
any efforts to obtain legal counsel on his own, so the Court will deny the
plaintiff’s motion. However, even if the plaintiff had provided that
evidence, the Court would deny the plaintiff’s motion at this time.
According to the plaintiff, he was a doctor in Ecuador and, just prior to his
detainment, was studying to take the medical boards in the United States.
While the substance of his original complaint is vague and conclusory, the
filing is articulate and well organized, and the Court believes that the
-6-

plaintiff, who is now informed of the pleading standard, is capable of
providing an amended complaint on his own without the assistance of
counsel.
Therefore, if the plaintiff wants to proceed, he must file an amended
complaint curing the deficiencies in the original complaint as described
herein. An amended complaint, if the plaintiff chooses to file one, must be
filed on or before July 31, 2015. Failure to file an amended complaint
within this time period will result in dismissal of this action for failure to
prosecute.
The plaintiff is advised that the amended complaint must bear the
docket number assigned to this case and must be labeled “Amended
Complaint.” The amended complaint supersedes the prior complaint and
must be complete in itself without reference to the original complaint. See
Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d
1054, 1056-57 (7th Cir. 1998). In Duda, the appellate court emphasized
that in such instances, the “prior pleading is in effect withdrawn as to all
matters not restated in the amended pleading[.]” Id. at 1057 (citation
omitted). If an amended complaint is received, it will be screened pursuant
to 28 U.S.C. § 1915A.

-7-

NOW, THEREFORE, IT IS ORDERED that the plaintiff’s request
to proceed in forma pauperis (ECF No. 2) is GRANTED.
IT IS ALSO ORDERED that the plaintiff’s motion to appoint
counsel (EFC No. 2) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that on or before July 31, 2015, the
plaintiff, if he so chooses, may file an amended complaint curing the
defects in the original complaint as described herein.
IT IS ALSO ORDERED that if the plaintiff chooses not to file an
amended complaint by July 31, 2015, this action will be dismissed for
failure to prosecute.
IT IS FURTHER ORDERED that copies of this order be sent to
the McHenry County, Illinois Sheriff.
IT IS ALSO ORDERED that the McHenry County Illinois Sheriff
shall collect from the plaintiff’s prisoner trust account the $85.11 balance
of the filing fee by collecting monthly payments from the plaintiff’s prison
trust account in an amount equal to 20% of the preceding month’s income
credited to the prisoner’s trust account and forwarding payments to the
Clerk of Court each time the amount in the account exceeds $10 in
accordance with 28 U.S.C. § 1915(b)(2). The payments shall be clearly
identified by the case name and number assigned to this action.
-8-

IT IS FURTHER ORDERED that the plaintiff shall submit all
correspondence and legal material to:
United States District Court
Office of the Clerk
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the matter.
In addition, the parties must notify the Clerk of Court of any change
of address. Failure to do so could result in orders or other information not
being timely delivered, thus affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin, this 1st day of July, 2015.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

-9-