Phipps v. Collman et al

Filing 6

IT IS HEREBY ORDERED that the complaint (Doc. 1) is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. IT IS ALSO ORDERED that Plaintiff is GRANTED leave to file a First Amended Complaint in this case, if he w ishes to pursue a claim for monetary relief against the defendants for violations of his constitutional rights at the Jail under 42 U.S.C. § 1983. The First Amended Complaint is due on or before October 6, 2016. (Amended Pleadings due by 10/6/2016). Signed by Judge J. Phil Gilbert on 8/31/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
D’MARKO PHIPPS,
#69596,
Plaintiff,
vs.
SGT. COLLMAN
and JOHN LAKIN,
Defendants.

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Case No. 16-cv-00857-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, who is currently detained at Madison County Jail (“Jail”) in Edwardsville,
Illinois, brings this pro se civil rights action against two Jail officials pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680 (Doc. 1). In his complaint, Plaintiff
claims that Sergeant Collman and Sheriff Lakin negligently failed to protect him from an attack
by three detainees at the Jail on November 26th1 (Doc. 1, p. 5). He seeks monetary relief against
both defendants (id. at 6).
Merits Review Under 28 U.S.C. § 1915A
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A.

Under § 1915A, the Court is required to promptly screen prisoner

complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to
dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim
upon which relief may be granted, or asks for money damages from a defendant who by law is
immune from such relief. 28 U.S.C. § 1915A(b).
1

The complaint does not indicate what year the attack occurred (Doc. 1, p. 5).
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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). 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.

Conversely, a complaint is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept
factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual
allegations may be so sketchy or implausible that they fail to provide sufficient notice of a
plaintiff’s claim.

Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).

Additionally,

Courts “should not accept as adequate abstract recitations of the elements of a cause of action or
conclusory legal statements.” Id. At the same time, however, the factual allegations of a pro se
complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 821 (7th Cir. 2009). The complaint is subject to dismissal under this standard.
The Complaint
According to the complaint, Plaintiff was attacked, beaten, and severely injured by three
detainees at Madison County Jail (“Jail”) on November 26th (Doc. 1, p. 5). The assault occurred
soon after Sergeant Collman moved Plaintiff into the same cellblock with a detainee who was
involved in his criminal case (id.). The cellblock had no panic button, and no one responded to
his cries for help, until an officer made his regular 30-minute rounds and observed the three
detainees beating Plaintiff.

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As a result of the attack, Plaintiff sustained severe injuries, including a collapsed lung,
three broken ribs, a broken nose, and facial swelling. Immediately after the assault, he was taken
to Barnes-Jewish Hospital in St. Louis, Missouri. He remained hospitalized there for four days.
After returning to the Jail on November 30th, Plaintiff was placed in segregation because
the Jail has no infirmary. At the time, he was still suffering from serious injuries, and he
required additional medical treatment. He claims that the treatment he received was inadequate
but offers no details in this regard.
Plaintiff now sues Sergeant Collman and Sheriff Lakin for negligence under the FTCA.
He claims that Sergeant Collman failed to protect him from an obvious risk of harm when he
moved Plaintiff into the same cellblock with a detainee who was involved in his criminal case.
He further alleges that Sheriff Lakin failed to install panic buttons in the cellblock, which would
have enabled Plaintiff to quickly summon help. Plaintiff generally alleges that he received
inadequate medical care after returning to the Jail on November 30th. In connection with these
claims, Plaintiff seeks monetary damages (id. at 6).
Discussion
Plaintiff asserts negligence claims against Sergeant Collman and Sheriff Lakin pursuant
to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680 (Doc. 1). The FTCA
provides jurisdiction for suits against the United States for torts committed by federal officials.
Plaintiff has not brought this lawsuit against the United States. He has also not named federal
officials as defendants. Therefore, the FTCA claims must be dismissed with prejudice.
Claims for constitutional deprivations by state actors are typically brought in a civil rights
action pursuant to 42 U.S.C. § 1983. Section 1983 creates a cause of action based on personal
liability and predicated upon fault; thus, “to be liable under [Section] 1983, an individual

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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). Even when construing the
allegations in the complaint liberally, Plaintiff does not allege that Sergeant Collman or Sheriff
Lakin violated his constitutional rights. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
FED. R. CIV. P. 8(a)(2). Instead, he brings claims against them for negligence. Under § 1983, a
defendant can never be held liable for negligence, or even gross negligence. Gomez v. Randle,
680 F.3d 859, 864 (7th Cir. 2012). Claims of negligence arise under state law, not federal law.
The negligence claims against both defendants shall therefore be dismissed without prejudice.
Under the circumstances, the complaint fails to state a claim for relief against either
defendant and shall be dismissed. However, the dismissal shall be without prejudice, and
Plaintiff will have an opportunity to file an amended complaint. His amended complaint should
focus on constitutional deprivations that occurred in connection with the November 26th
incident.
Plaintiff’s claims likely arise under the Due Process Clause of the Fourteenth
Amendment, which applies to pretrial detainees and prohibits punishment. See Budd v. Motley,
711 F.3d 840, 842 (7th Cir. 2013) (citing Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650,
664 (7th Cir. 2012)). See also Klebanowski v. Sheahan, 540 F.3d 633, 637 (7th Cir. 2008).
The Eighth Amendment’s proscription against cruel and unusual punishment applies to claims
brought by prisoners. Id. The inquiry under both provisions of the Constitution is essentially the
same. Grieveson v. Anderson, 538 F.3d 763, 772 (7th Cir. 2008) (Weiss v. Cooley, 230 F.3d
1027, 1032 (7th Cir. 2000) (noting that there is “little practical difference between the two
standards”)). The Seventh Circuit has “found it convenient and entirely appropriate to apply the
same standard to claims arising under the Fourteenth Amendment (detainees) and Eighth

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Amendment (convicted prisoners) ‘without differentiation.’” Board v. Farnham, 394 F.3d 469,
478 (7th Cir. 2005) (quoting Henderson v. Sheahan, 196 F.3d 839, 845 n.2 (7th Cir. 1999)).
Against this backdrop, the Court will briefly address each of Plaintiff’s potential claims.
A constitutional claim may arise under the Fourteenth Amendment (detainee) or the
Eighth Amendment (prisoner), if either defendant failed to protect Plaintiff from a known and
substantial risk of serious harm. To state a failure-to-protect claim, the plaintiff must allege that
jail officials “knew that he faced a substantial risk of serious harm and deliberately disregarded
the risk” by failing to take reasonable measures to abate it. Key v. Kolitwenzew, 630 Fed. Appx.
620, 623 (7th Cir. 2015) (citing Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984, 989
(7th Cir. 2012)). It is not enough to allege that an officer might have known, probably should
have known, or could have learned about a substantial risk of serious harm posed by a fellow
detainee, as Plaintiff has alleged with respect to Sergeant Collman. The defendant must have
acted with “conscious disregard” of a significant risk of violence to the pretrial detainee.
See Junior v. Anderson, 724 F.3d 812, 815 (7th Cir. 2013) (citing Farmer v. Brennan, 511 U.S.
825 (1994)). This requires a showing that the officer acted with the equivalent of criminal
recklessness, not negligence or even gross negligence. Fisher v. Lovejoy, 414 F.3d 659, 662
(7th Cir. 2005); Farmer, 511 U.S. at 835. Further, an officer who actually knew of a substantial
risk to a detainee’s safety is still free of liability “if [he] responded reasonably to the risk, even if
the harm ultimately was not averted.” Fisher, 414 F.3d at 662 (quoting Peate v. McCann,
294 F.3d 879, 882 (7th Cir. 2002)). The complaint does not support a failure-to-protect claim
against Sergeant Collman under this standard.
Plaintiff also alleges that Sheriff Lakin should have installed panic buttons in each
cellblock to ensure that detainees could call for help in emergency situations. He acknowledges

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that a panic button would not have prevented the attack that occurred on November 26th, but he
argues that it would have enabled him to summon help sooner.
Regardless of how Plaintiff characterizes this claim (e.g., as a failure-to-protect or
conditions-of-confinement claim), the allegations must at least suggest that the sheriff’s failure to
install a panic button in the cellblock before November 26th amounted to deliberate indifference.
Allegations that a defendant disregarded “a generalized risk of violence [are] not enough”
because jails are inherently dangerous places. Wilson v. Ryker, 451 Fed. Appx. 588, 589
(7th Cir. 2011) (citing Brown v. Budz, 398 F.3d 904, 909, 913 (7th Cir. 2005); Riccardo v.
Rausch, 375 F.3d 521, 525 (7th Cir. 2004)). Instead, Plaintiff must establish that the sheriff
consciously disregarded a “tangible threat to his safety or well-being.” Id. (citing Grieveson,
538 F.3d 763, 77 (7th Cir. 2008); Billman v. Indiana Dep’t of Corrections, 56 F.3d 785, 788
(7th Cir. 1995) (noting distinction between actual and feared exposure)).

Further, “the

conditions presenting the risk must be ‘sure or very likely to cause . . . needless suffering,’ and
give rise to ‘sufficiently imminent danger.’” Id. (citations omitted). The complaint does not
support a claim against Sheriff Lakin under this standard.
Finally, a constitutional claim may arise against those officers or medical staff members
who denied Plaintiff medical care for his injuries after he returned to the Jail on November 30th.
Prison officials violate the Eighth Amendment when they respond to a prisoner’s serious medical
needs with deliberate indifference.

Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011)

(citing Estelle, 429 U.S. at 104). To state a claim, a prisoner must demonstrate that he suffered
from an objectively serious medical need. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)
(quoting Farmer, 511 U.S. at 834). He must also establish that each of the named defendants

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responded to his serious medical needs with deliberate indifference, which is a subjective
standard. Id.
In the complaint, Plaintiff generally alleges that he received inadequate medical care at
the Jail following his hospitalization. He offers no factual allegations in support of this claim.
He does not identify what serious medical needs required further attention. He also fails to
identify any particular defendant in connection with this claim or describe conduct on the part of
each defendant that amounted to deliberate indifference. If he wishes to pursue a medical claim
against either of the defendants, Plaintiff will need to include more specific allegations
addressing the objective and subjective components of this claim.
Disposition
IT IS HEREBY ORDERED that the complaint (Doc. 1) is DISMISSED without
prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that Plaintiff’s claims under the Federal Tort Claims Act,
28 U.S.C. §§ 1346, 2671-2680, are DISMISSED with prejudice, and his negligence claims
under Illinois state law are DISMISSED without prejudice.
IT IS ALSO ORDERED that Plaintiff is GRANTED leave to file a “First Amended
Complaint” in this case, if he wishes to pursue a claim for monetary relief against the defendants
for violations of his constitutional rights at the Jail under 42 U.S.C. § 1983. The First Amended
Complaint is due on or before October 6, 2016. Should Plaintiff fail to file his First Amended
Complaint within the allotted time, dismissal will become with prejudice. FED. R. CIV. P. 41(b).
See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34
F.3d 466 (7th Cir. 1994). Further, a “strike” may be assessed. See 28 U.S.C. § 1915(g).

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Should Plaintiff decide to file an amended complaint, it is strongly recommended that he
use the forms designed for use in this District for such actions. He should be careful to label the
pleading, “First Amended Complaint,” and he must list this case number on the first page
(Case No. 16-857-JPG). Plaintiff must present each claim in a separate count, and each count
shall specify, by name, each defendant alleged to be liable under the count for a violation of
Plaintiff’s federal constitutional rights, as well as the actions alleged to have been taken by that
defendant. Plaintiff should attempt to include the facts of his case in chronological order,
inserting each defendant’s name where necessary to identify the actors. He should refrain from
filing unnecessary exhibits. Further, Plaintiff should include only related claims in his new
complaint. Claims found to be unrelated will be severed into new cases, new case numbers will
be assigned, and additional filing fees will be assessed. To enable Plaintiff to comply with this
order, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form along with a
copy of the complaint (Doc. 1).
Plaintiff is ADVISED that this dismissal shall not count as one of his allotted “strikes”
under the provisions of 28 U.S.C. § 1915(g).
An amended complaint supersedes and replaces the original complaint, rendering the
original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1
(7th Cir. 2004). The Court will not accept piecemeal amendments to the original complaint.
Thus, the First Amended Complaint must stand on its own, without reference to any previous
pleading, and Plaintiff must re-file any exhibits he wishes the Court to consider along with the
First Amended Complaint. Finally, the First Amended Complaint is subject to review pursuant
to 28 U.S.C. § 1915A.

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Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee of $350.00 remains due and payable,
regardless of whether Plaintiff elects to file an amended complaint. See 28 U.S.C. § 1915(b)(1);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than
7 days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: August 31, 2016
s/J. Phil Gilbert
United States District Judge

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