Smith v. Fishel et al

Filing 12

SECOND MERIT REVIEW OPINION granting 8 Motion for Leave to File amended complaint. Defendants Gans, Baldwin and Johnson are terminated. Clerk is to enter a HIPAA order. Rule 16 Deadline 11/27/2017. SEE WRITTEN ORDER. Entered by Judge Sue E. Myerscough on 09/26/2017. (SKN, ilcd)

E-FILED

Tuesday, 26 September, 2017 10:47:34 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MARVIN C. SMITH,
Plaintiff,
v.
C/O FISHEL, et al.
Defendants.

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17-CV-4015

SECOND MERIT REVIEW OPINION
On March 3, 2017, the Court dismissed Plaintiff’s complaint
for failure to state a claim with leave to file an amended complaint.
Plaintiff has filed his amended complaint, which is before the Court
for a merit review pursuant to 28 U.S.C. § 1915A.
Plaintiff alleges that on February 26, 2016, around 6:00 a.m.,
he was attacked by another inmate who came out of nowhere while
Plaintiff was returning from the health care unit. Plaintiff was
knocked unconscious, suffering injuries to his face and a fractured
right shoulder and collar bone which required a trip to the hospital.
Plaintiff alleges that he told Officers Fishel and Marshal hours

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before the attack that he feared for his safety because he had gotten
into an argument with an inmate with a violent reputation for
assaulting other inmates. Plaintiff did not know the name of this
inmate but did know this inmate’s housing unit. Officer Fishel and
Marshal allegedly did nothing and then failed to secure the housing
wings properly, creating the opportunity for the inmate to attack
Plaintiff. Plaintiff also alleges that Officer Marshal exacerbated
Plaintiff’s injuries by cuffing him after the incident. Plaintiff was
kept in segregation in the infirmary for several days, without a
hearing, under the orders of Defendant Bryant, an internal affairs
investigator. Additionally, Defendant Bryant refused to inform
Plaintiff of the identity of the inmate who attacked Plaintiff,
allegedly placing Plaintiff at risk. Plaintiff also sues the individuals
who denied his grievances and the IDOC Director for an alleged
custom of encouraging lax security.
At this point, the Court cannot rule out an Eighth Amendment
claim of failure to protect against Officers Fishel and Marshal, and
possibly an Eighth Amendment claim against Marshal for
exacerbating Plaintiff’s injuries with the handcuffing. Plaintiff may
also state a failure to protect claim against Defendant Bryant for
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failing to identify Plaintiff’s attacker so that Plaintiff could avoid
future attacks. Defendant Bryant may have a good reason for doing
so, and Plaintiff and this inmate may already be separated in a way
that protects Plaintiff from danger, but those determinations would
be premature.
As the Court stated in its earlier order, the Defendants who
denied Plaintiff’s grievance (Defendants Gans and Baldwin) do not
violate the Constitution solely on those grounds. “Prison officials
who reject prisoners’ grievance[s] do not become liable just because
they fail to ensure adequate remedies.” Estate of Miller, 847 F.3d
425, 428 (7th Cir. 2016). Additionally, Plaintiff’s claims against the
IDOC Director Baldwin that the IDOC has a policy of turning a
blind eye to constitutional deprivations is too conclusory to state a
claim. The IDOC Director cannot be held liable for the
constitutional violations of his employees solely because the IDOC
Director is in charge. Chavez v. Illinois State Police, 251 F.3d 612,
651 (7th Cir. 2001)(no respondeat superior liability under § 1983).
Lastly, no constitutional violation arises from Plaintiff’s placement
in the infirmary in segregation for a few days. See, e.g., Earl v.

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Racine Cnty. Jail, 718 F.3d 689, 690, 692 (7th Cir.2013) (12–day
and 7–day segregation terms did not implicate liberty interest).
IT IS ORDERED:

1)

Pursuant to its merit review of the Complaint under 28

U.S.C. § 1915A, the Court finds that Plaintiff states the following
constitutional claims: 1) Eighth Amendment failure to protect claim
against Defendants Fishel, Marshal, and Bryant; and, 2) Eighth
Amendment claim against Defendant Marshal for allegedly
exacerbating Plaintiff’s injuries by applying handcuffs. Plaintiff also
states a supplemental state law claim against the John Doe inmate
who assaulted him. The John Doe inmate cannot be served until
Plaintiff identifies John Doe’s name. This case proceeds solely on
the claims identified in this paragraph. Any additional claims shall
not be included in the case, except at the Court’s discretion on
motion by a party for good cause shown or pursuant to Federal
Rule of Civil Procedure 15.
2)

Defendants Gans, Baldwin, and Johnson are dismissed,

without prejudice, for failure to state a claim against them.

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3)

This case is now in the process of service. Plaintiff is

advised to wait until counsel has appeared for Defendants before
filing any motions, in order to give Defendants notice and an
opportunity to respond to those motions. Motions filed before
Defendants' counsel has filed an appearance will generally be
denied as premature. Plaintiff need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.
4)

The Court will attempt service on Defendants by mailing

each Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 days of the
entry of this order, Plaintiff may file a motion requesting the status
of service. After Defendants have been served, the Court will enter
an order setting discovery and dispositive motion deadlines.
5)

With respect to a Defendant who no longer works at the

address provided by Plaintiff, the entity for whom that Defendant
worked while at that address shall provide to the Clerk said
Defendant's current work address, or, if not known, said
Defendant's forwarding address. This information shall be used
only for effectuating service. Documentation of forwarding
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addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
6)

Defendants shall file an answer within 60 days of the

date the waiver is sent by the Clerk. A motion to dismiss is not an
answer. The answer should include all defenses appropriate under
the Federal Rules. The answer and subsequent pleadings shall be
to the issues and claims stated in this Opinion. In general, an
answer sets forth Defendants' positions. The Court does not rule
on the merits of those positions unless and until a motion is filed by
Defendants. Therefore, no response to the answer is necessary or
will be considered.
7)

This District uses electronic filing, which means that,

after Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
filed with the Clerk. Plaintiff must mail his discovery requests and
responses directly to Defendants' counsel. Discovery requests or
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responses sent to the Clerk will be returned unfiled, unless they are
attached to and the subject of a motion to compel. Discovery does
not begin until Defense counsel has filed an appearance and the
Court has entered a scheduling order, which will explain the
discovery process in more detail.
8)

Counsel for Defendants is hereby granted leave to depose

Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the deposition.
9)

Plaintiff shall immediately notify the Court, in writing, of

any change in his mailing address and telephone number.
Plaintiff's failure to notify the Court of a change in mailing address
or phone number will result in dismissal of this lawsuit, with
prejudice.
10)

If a Defendants fails to sign and return a waiver of service

to the clerk within 30 days after the waiver is sent, the Court will
take appropriate steps to effect formal service through the U.S.
Marshal's service on that Defendant and will require that Defendant
to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).

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11)

Within 10 days of receiving from Defendants' counsel an

authorization to release medical records, Plaintiff is directed to sign
and return the authorization to Defendants' counsel.
12)

Plaintiff’s motion for leave to file an amended

complaint is granted (d/e 7).
13)

Plaintiff’s motion for status is denied as moot (d/e 9).

14)

The clerk is directed to separately docket Plaintiff’s

amended complaint (attachment to docket entry 8).
15)

The clerk is directed to terminate Defendants Gans,

Baldwin, and Johnson.
16)

The Clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: 09/26/2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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