“§ 1983 protects plaintiffs from constitutional violations, not violations of state laws or, in this case, departmental regulations and police practices.”
How later courts described this case
- “§ 1983 protects plaintiffs from constitutional violations, not violations of state laws or, in this case, departmental regulations and police practices.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
DENNIS E. NASH, JR., )
)
Plaintiff, )
v. ) No.: 19-cv-4121-JBM
)
JAMES T. DIMAS, et al., )
)
Defendants. )
ORDER
Plaintiff, proceeding pro se and detained at the Rushville Treatment and Detention Center
(“Rushville”), files a complaint under 42 U.S.C. § 1983, seeking leave to proceed in forma
pauperis (“IFP”) under 28 U.S.C. §1915 (a)(1). Section 1915 (a)(1) “is designed to ensure
indigent litigants meaningful access to the federal courts.” Christophel v. Brandl, No. 08-755,
2008 WL 5429658, at *1 (E.D. Wis. Dec. 31, 2008) citing Neitzke v. Williams, 490 U.S. 319, 327
(1989). A court must, however, dismiss cases proceeding in forma pauperis "at any time" if the
action is found frivolous, malicious, or fails to state a claim, even if part of the filing fee has been
paid. The Court has determined that Plaintiff reaches the threshold poverty analysis and now
reviews the complaint to determine whether it is frivolous, fails to state a claim, or seeks
monetary relief against a defendant immune from suit. 28 U.S.C. §1915(e)(2).
When reviewing the complaint, the Court accepts the factual allegations as true, liberally
construing them in Plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013).
However, conclusory statements and labels are insufficient. Enough facts must be provided to
"'state a claim for relief that is plausible on its face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th
Cir. 2013) (quoted cite omitted). While the pleading standard does not require “detailed factual
allegations,” it requires “more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Wilson v. Ryker, 451 Fed. Appx. 588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
FACTS
Plaintiff is civilly detained in the Rushville Treatment and Detention Center pursuant to
the Illinois Sexually Violent Persons Commitment Act, 725 ILCS 207/1, et seq. Plaintiff alleges
that Defendants James Dimas, Secretary of the Illinois Department of Human Services
(“IDHS”); IDHS Security Director McCurry; Assistant Program Director Kunkel; Clinical
Therapist Dr. Lodge; and Security Therapy Aids Lucas and Pennock were deliberately
indifferent to his safety, resulting in his being sexually assaulted by his roommate.
On an unidentified date, Plaintiff was assigned a new roommate, Daniel Bess. Plaintiff
claims that on July 23, 2018, while he was heavily medicated and sleepy, Mr. Bess sexually
assaulted him in their cell. Plaintiff claims that he reported the assault to his clinical therapist but
does not indicate that he filed an incident report or disclosed it to anyone else. Plaintiff
thereafter filed an emergency request for a room change but does not indicate that he disclosed
the reason for the request. His pleading in this regard is very unclear as he alleges without
further explanation that “coworkers put words in my mouth and that’s not what I said.”
It does not appear that Defendants were aware of the incident and the request was denied.
Plaintiff claims, in fact, that Defendants threatened him with disciplinary action for refusing
housing. Plaintiff grieved the matter and asserts that an unidentified individual allegedly
responded, indicating that Plaintiff had never reported the sexual assault by his roommate.
As noted, Plaintiff pleads only that he reported the incident to his therapist. The Court
frankly does not know whether the therapist would have been bound to report the sexual assault
or would, for confidentiality reasons, have been prohibited from doing so. If the Defendants did
not know of the sexual assault, however, they could not have been deliberately indifferent in
failing to move Plaintiff or threatening him with discipline for refusing housing.
Plaintiff also claims that Defendants were deliberately indifferent as they should not have
placed him with Mr. Bess to begin with. Plaintiff asserts that Defendants failed to perform a
background check of Mr. Bess prior to the placement. It is not clear what Plaintiff would have
expected the background check to reveal as both he and Mr. Bess are clearly sex offenders as
evidenced by their detention at Rushville. If Mr. Bess had a prior history of sexual assault of his
roommates, Plaintiff fails to allege it. Officials will not be found liable for failing to protect
those in their charge unless they “knew the inmate faced a ‘substantial risk of serious harm’ and
‘disregard[ed] that risk by failing to take reasonable measures to abate it.’” Grieveson v.
Anderson, 538 F.3d 763, 777 (7th Cir. 2008) (emphasis in original).
Here, there is nothing to suggest that Defendants had particular knowledge that Mr. Bess
would assault Plaintiff. “In failure to protect cases, ‘[a] prisoner normally proves actual
knowledge of impending harm by showing that he complained to prison officials about a specific
threat to his safety.’” Gevas v. McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015). “[A[ complaint
that identifies a specific, credible, and imminent risk of serious harm and identifies the
prospective assailant typically will support an inference that the official to whom the complaint
was communicated had actual knowledge of the risk.” Id. at 481. Plaintiff makes no such
allegations here.
Plaintiff also asserts a claim that Defendants failed to follow protocols and guidelines, not
particularly identified. He alleges, further, that staff failed to do regular, 15-30-minute checks of
the cells but does not state that this was required or that it would have prevented the assault.
Regardless, the failure to follow internal protocols or rules, without more, is not enough to
sustain a constitutional violation. See Estate of Simpson v. Gorbett, 863 F.3d 740, 746 (7th Cir.
2017); Thomas v. City of Chicago, 472 F.3d 444 (7th Cir. 2006) (Ҥ 1983 protects plaintiffs from
constitutional violations, not violations of state laws or, in this case, departmental regulations and
police practices.”)
Plaintiff’s claims against Defendant Director Dimas appears to be based only on his
position as the IDHS Director. There is, however, no respondeat superior or liability under
§ 1983 as defendants are only liable for their own wrongdoing. Duckworth v. Franzen, 780
F.2d 645, 650 (7th Cir. 1985). “To recover for damages under 42 U.S.C. § 1983, a plaintiff
must establish defendant's personal responsibility for the claimed deprivation of a constitutional
right.” As Plaintiff fails to allege any personal participation by Defendant Dimas, he is
DISMISSED.
IT IS THEREFORE ORDERED:
1. Plaintiff’s motion for leave to appeal IFP [3] is DENIED as the complaint is
dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff will have 30
days from the entry of this order in which to replead. The pleading is to be titled “amended
complaint” and is to stand complete, on its own without reference to a prior pleading. Failure to
file an amended complaint will result in the dismissal of this case, without prejudice, for failure
to state a claim. Defendant Dimas is DISMISSED.
2. Plaintiff’s Motion to Waive Fees [6] and Motion to Request Counsel [8] are
rendered MOOT, though Plaintiff may reassert if he files an amended complaint. Plaintiff’s
Motion for Status [9] is also MOOT.
__1_0/_1_5_/_2_0_1_9___ _______s/ Joe Billy McDade_____
ENTERED JOE BILLY McDADE
UNITED STATES DISTRICT JUDGE