Rivera v. Indiana State of

Opinion

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,

Defendant.

OPINION AND ORDER Victor Rivera, a prisoner without a lawyer, filed an amended complaint. ECF 20. “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) (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. As in his original complaint, Mr. Rivera alleges that, on September 15, 2020, when he was housed at the Miami Correctional Facility, another inmate attacked and stabbed him in the head, neck, and back while he was on the upper range of P Dorm. ECF 20 at 2. He says he turned to run away from the inmate, but he slipped and fell down because the floor was bloody. Id. Mr. Rivera asserts that, after he managed to get up off the floor, he was rushed to the hospital by helicopter. Id. He states that when he returned to the prison, he was again placed in P Dorm; but because his cell did not have a call box, he could not get medical help when he was spitting up blood. Id. Mr. Rivera asserts that, as a result of the incident, he suffers from post-traumatic stress disorder and is now housed

in a mental health unit at Pendleton Correctional Facility. Id. at 2-3. Given these events, Mr. Rivera says he was subjected to cruel and unusual punishment in violation of his Eighth Amendment rights. Though his allegations are concerning, when the court screened Mr. Rivera’s original complaint, he was advised that 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). ECF 9 at 2. In other words, the State of Indiana is immune from suit under the Eleventh Amendment. Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001). There are three exceptions to Eleventh Amendment immunity: (1) suits directly against the State based on a cause of action where Congress has abrogated the state’s immunity from suit; (2) suits directly against the State if the State waived its sovereign immunity; and (3) suits

against a State official seeking prospective equitable relief for ongoing violations of federal law. MCI Telecommunications Corp. v. Ill. Commerce Comm’n, 183 F.3d 558, 563 (7th Cir. 1999). No exception applies here, so Mr. Rivera cannot proceed against the State of Indiana. Furthermore, though unclear from his amended complaint, Mr. Rivera may also

be suing the Miami Correctional Facility. However, the Miami Correctional Facility is a building. It is not a suable entity. Smith v. Knox County Jail, 666 F.3d 1037, 1040 (7th Cir. 2012). Therefore, he cannot proceed against the Miami Correctional Facility. Though Mr. Rivera’s amended complaint does not state a claim, the court will give him one more opportunity to replead, if after reviewing this order, he believes he can

state a claim. Luevano v. WalMart Stores, Inc., 722 F.3d 1014, 1022-23, 1025 (7th Cir. 2013); Loubser v. Thacker, 440 F.3d 439, 443 (7th Cir. 2006). When Mr. Rivera prepares his next amended complaint, he should explain in his own words what happened, when it happened, where it happened, who all 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 November 29, 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.

October 27, 2021 s/ Damon R. Leichty Judge, United States District Court