Gardner v. IDOC et al

Filing 6

ORDER DISMISSING CASE without prejudice due to Plaintiff's failure to exhaust available administrative remedies, as required under 42 U.S.C. § 1997e(a). This dismissal shall not count as one of Plaintiff's allotted strikes under 28 U.S.C. § 1915(g). Signed by Judge Nancy J. Rosenstengel on 8/14/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GABRIEL A. GARDNER,
No. M33236,
Plaintiff,
vs.
IDOC,
WARDEN MARTIN,
ERIC MIRANDA, and
UNKNOWN PARTIES,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 14-cv-00857-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Gabriel A. Gardner, an inmate in Vienna Correctional Center, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on events that
occurred while he was housed at Shawnee Correctional Center. More specifically, it is alleged
that Plaintiff’s cellmate repeatedly abused, beat and raped him during a two-month period in
2013.
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which
a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief may be
granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.
Page 1 of 6

An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted
if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must
cross “the line between possibility and plausibility. Id. at 557. At this juncture, the factual
allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Complaint
According to the relatively succinct complaint, during May and June of 2013, Plaintiff’s
cellmate at Shawnee Correctional Center, Eric Miranda, escalated from slapping Plaintiff around
to preventing him from receiving his meals, to more severe beatings, to forced oral sex, and
eventually to rape—often involving Plaintiff being tied up. According to the complaint, “[t]he
segregation staff had a gross disregard for what was being done to [Plaintiff].” (Doc. 1, p. 6).
That quoted assertion is the sole mention of the involvement of prison personnel in the events at
issue.
Attached to the complaint is a letter from the Johnson County State’s Attorney indicating
that inmate Miranda had pleaded guilty to aggravated battery and was sentenced to a ten-year
term of imprisonment, to run consecutively to his current sentence (Doc. 1, p. 13). Three pages
of recent mental health progress notes are also appended to the complaint (Doc. 1, pp. 10-12).
Suit is brought against three named parties and numerous unidentified correctional
officers and nurses at Shawnee. The named defendants are: Illinois Department of Corrections
Page 2 of 6

(“IDOC”), Warden Martin, and inmate Miranda.

Compensatory and punitive damages are

sought.
Discussion
The allegations in the complaint are certainly fodder for a claim that prison officials
failed to protect Plaintiff from harm at the hands of inmate Miranda, in violation of the Eighth
Amendment.

There may also be other possible claims under the Eighth Amendment for

deliberate indifference, but the scant factual narrative does not allow for more than mere
speculation. In any event, the complaint must be dismissed for the reasons set forth below.
Dismissal will be without prejudice, leaving open the possibility that Plaintiff can re-plead his
case in another action after he has exhausted administrative remedies.
The Claims and Defendants
The Eighth Amendment to the United States Constitution protects prisoners from being
subjected to cruel and unusual punishment.

U.S. CONST. amend. VIII. See also Berry v.

Peterman, 604 F.3d 435, 439 (7th Cir. 2010).

Eighth Amendment protection extends to

conditions of confinement that pose a substantial risk of serious harm, including health and
safety. See Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984 (7th Cir. 2012). Prison
officials have a constitutional duty to protect inmates “from violence at the hands of other
inmates.” Washington v. LaPorte County Sheriff's Dep’t, 306 F.3d 515, 517 (7th Cir. 2002).
Thus, the sort of physical attacks described in the complaint fall under the ambit of the Eighth
Amendment.
Inmate Miranda most likely cannot be held liable under Section 1983, which is only
applicable to those acting under color of law, such as prison officials. See 42 U.S.C. § 1983;
Henderson v. Pate, 409 F.2d 507, 508 (7th Cir. 1969) (absent any evidence that an aggressor-

Page 3 of 6

inmate was acting under color of law, that inmate cannot be held liable under Section 1983).
Relative to the other defendants, Section 1983 creates a cause of action based on personal
liability and predicated upon fault; thus, “to be liable under [Section] 1983, an individual
defendant must have caused or participated in a constitutional deprivation.” Pepper v. Village of
Oak Park, 430 F.3d 809, 810 (7th Cir. 2005) (citations omitted). A prison official may be liable
“only if he knows that inmates face a substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Proving deliberate indifference requires more than a showing of negligent or even grossly
negligent behavior.

Id. at 835.

Rather, the corrections official must have acted with the

equivalent of criminal recklessness. Id. at 836–37.
Because personal involvement is required for liability to attach, the doctrine of
respondeat superior—supervisor liability—is not applicable to Section 1983 actions. Sanville v.
McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Ill. State Police, 251 F.3d
612, 651 (7th Cir. 2001)). Thus, Warden Martin cannot face liability merely because he is the
warden of the institution.

Allegations that senior officials were personally responsible for

creating the policies, practices and customs that caused the constitutional deprivations can,
however, suffice to demonstrate personal involvement for purposes of Section 1983 liability.
See Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 615 (7th Cir. 2002). “Supervisory
liability will be found … if the supervisor, with knowledge of the subordinate’s conduct,
approves of the conduct and the basis for it.” Lanigan v. Village of East Hazel Crest, Ill., 110
F.3d 467, 477 (7th Cir. 1997); Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001).
With respect to the IDOC, the Eleventh Amendment bars suits against an un-consenting
state—including its agencies and officers in their official capacities—for monetary damages. See

Page 4 of 6

Edelman v. Jordan, 415 U.S. 651, 662-663 (1974); Indiana Protection and Advocacy Services v.
Indiana Family and Social Services Administration, 603 F.3d 365, 370 (7th Cir. 2010). The
complaint seeks only monetary damages.
For the reasons stated, the complaint fails to state a claim upon which relief can be
granted and it must be dismissed.
Exhaustion of Administrative Remedies
The Prison Litigation Reform Act provides:
No action shall be brought with respect to prison conditions under Section 1983
of this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
exhausted.
42 U.S.C. § 1997e(a). Exhaustion of available administrative remedies is a precondition to suit.
Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004). See also Perez v. Wis. Dept. of Corr., 182
F.3d 532, 534–535 (7th Cir. 1999) (stating that Section 1997e(a) of the PLRA “makes
exhaustion a precondition to bringing suit” under Section 1983).
Although exhaustion of administrative remedies is an affirmative defense and not a
pleading requirement, the Supreme Court has recognized that a plaintiff can still plead himself
out of court on such a basis, as with any affirmative defense, such as a statute of limitations.
Jones v. Bock, 549 U.S. 199, 211-212, 215 (2007); see also Kalinowski v. Bond, 358 F.3d 978,
978 (7th Cir. 2004). The complaint unequivocally indicates that Plaintiff did not even attempt to
utilize administrative grievance procedures before filing this action, because Plaintiff mistakenly
characterizes the events at issue as “criminal” and not properly redressed through the
administrative system, and because monetary damages are unavailable from the IDOC (see Doc.
1, p. 4). The civil remedy Plaintiff now seeks under Section 1983 (monetary damages) is distinct
from the criminal courts where inmate Miranda was prosecuted. Unless administrative remedies
Page 5 of 6

are unavailable to Plaintiff, in order to proceed with a civil action he must exhaust the
administrative process, even if the relief sought cannot be authorized through that process. See
Dole v. Chandler, 438 F.3d 804, 808 (7th Cir. 2006).
Therefore, this action was prematurely filed and must be dismissed without prejudice,
regardless of whether a colorable constitutional claim had been stated.

If and when the

exhaustion requirement is satisfied, Plaintiff can file a new action. This is why Plaintiff is not
being given an opportunity to merely amend his complaint to sate a colorable claim; he must
start anew.
The Filing Fee
Plaintiff’s motion for pauper status was granted by separate order. Plaintiff’s obligation
to pay the filing fee for this action was incurred at the time the complaint was filed, thus the
filing fee of $350.00 remains due and payable, even though this action is being dismissed. See
28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, this action is DISMISSED
without prejudice due to Plaintiff’s failure to exhaust available administrative remedies, as
required under 42 U.S.C. § 1997e(a). Consequently, Plaintiff’s pending motion for counsel
(Doc. 3) is DENIED as moot. This dismissal shall not count as one of Plaintiff’s allotted
“strikes” under 28 U.S.C. § 1915(g). Judgment shall enter accordingly, and the Clerk of Court
shall close this case.
IT IS SO ORDERED.
Digitally signed by Nancy J
Rosenstengel
Date: 2014.08.14 10:20:31 -05'00'

DATED: August 14, 2014

______________________________
NANCY J. ROSENSTENGEL
United States District Judge
Page 6 of 6