Smith v. Fishel et al

Filing 6

MERIT REVIEW OPINION: Plaintiff's complaint is dismissed without prejudice forfailure to state a claim pursuant to 28 U.S.C. § 1915A. Plaintiff may file an amended complaint by March 27, 2017. If Plaintiff does not file an amended complaint or Plaintiff's amended complaint still fails to state a federal claim, then this action will be dismissed for failure to state a claim and a strike will be assessed against Plaintiff pursuant to 28 U.S.C. 1915(g). If Plaintiff files an amended complaint, the amended complaint will replace the original complaint. Piecemeal amendments are not permitted. SEE WRITTEN ORDER. Entered by Judge Sue E. Myerscough on 3/3/2017. (MJC, ilcd)

E-FILED

Friday, 03 March, 2017 10:37:49 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, C/O MARSHAL,
)
STEVE GANS, WAINER DARRYL,
)
JOHN BALDWIN, SARA JOHNSON, )
et al.
)
)
Defendants.
)

17-CV-4015

MERIT REVIEW OPINION
Plaintiff filed this case pro se from the Hill Correctional Center.
The case is before the Court for a merit review pursuant to 28
U.S.C. § 1915A.1 This statute requires the Court to review a
complaint filed by a prisoner to identify the cognizable claims and to
dismiss part or all of the complaint if no claim is stated.
In 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,

1

 A prisoner  who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can 
no longer proceed in forma pauperis (without prepaying the filing fee in full) unless the prisoner is under 
“imminent danger of serious physical injury.”  28 U.S.C. § 1915(g). 

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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).
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.
According to the decision from the Administrative Review Board
attached to the Complaint, a “mass line was returning to D Wing”
as Plaintiff was returning from healthcare.
Plaintiff seeks to hold Officers Fishel and Marshal liable for
this attack, alleging that they were grossly negligent. Plaintiff
alleges that Officer Fishel failed to watch the wings to ensure no
inmates were hiding in the day room during lock up. Officer
Marshal allegedly failed to ensure that all inmates were secured in
their cells and failed to make sure that the area was secured before
allowing each wing to exit. Plaintiff maintains that the rest of the

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Defendants are liable because they failed to find in Plaintiff’s favor
on his grievance.
The Eighth Amendment prohibits the cruel and unusual
punishment of prisoners. Negligence by a prison official, even gross
negligence, does not arise to punishment under the Eighth
Amendment. Farmer v. Brennan, 511 U.S. 825, 826 (1994)(“[T]he
failure to alleviate a significant risk that an official should have
perceived but did not, while no cause for commendation, cannot be
condemned as the infliction of punishment under the Court's
cases.”); Borello v. Allison, 446 F.3d 742 (7th Cir. 2006)(no
deliberate indifference where prison guards might have been
negligent in failing to move inmate out of cell with mentally ill
roommate)(“Defendants may have acted negligently by not moving
Plaintiff to another cell. But as we have repeatedly stated, ‘[m]ere
negligence or even gross negligence does not constitute deliberate
indifference.’”)(quoted cite omitted). A negligence claim arising from
these facts would be based on state law and would need to be
pursued in the Illinois Court of Claims. See, e.g., Faircloth v. State
of Illinois, 55 Ill.Ct.Cl. 275 (2002)(awarding $10,000 to injured
inmate where guards were negligent in allowing general population
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inmates unsupervised in the same tunnel with protective custody
inmates).
To state a claim under the Eighth Amendment, Plaintiff’s
factual allegations must allow a plausible inference of deliberate
indifference to a substantial risk of serious harm, not just
negligence or gross negligence. Deliberate indifference means the
prison official was “aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must
also draw that inference.” Farmer, 511 U.S. at 837.
The facts alleged by Plaintiff do not allow an inference that
Officers Fishel or Marshal actually knew of a substantial risk of
harm posed to Plaintiff by the inmate who attacked him or knew
that their own conduct created any substantial risk of harm to
Plaintiff. Perhaps Officers Fishel and Marshal were negligent, or
grossly negligent, but, as discussed above, that is not enough to
violate the U.S. Constitution.
As to the Defendants who denied Plaintiff’s grievance, that
action did not violate the Constitution. “Prison officials who reject
prisoners’ grievance[s] do not become liable just because they fail to

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ensure adequate remedies.” Estate of Miller, 847 F.3d 425, 428 (7th
Cir. 2016).
In short, Plaintiff’s complaint does not state a plausible federal
claim for relief. The complaint will be dismissed without prejudice
to filing an amended complaint.
IT IS ORDERED:
1)

Plaintiff's complaint is dismissed without prejudice for

failure to state a claim pursuant to 28 U.S.C. § 1915A.
2) Plaintiff may file an amended complaint by March 27,
2017. If Plaintiff does not file an amended complaint or Plaintiff’s
amended complaint still fails to state a federal claim, then this
action will be dismissed for failure to state a claim and a strike will
be assessed against Plaintiff pursuant to 28 U.S.C. 1915(g). If
Plaintiff files an amended complaint, the amended complaint will
replace the original complaint. Piecemeal amendments are not
permitted.
ENTERED: March 3, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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