Dismukes v. Dennison

Filing 5

IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. Plaintiff is GRANTED leave to file a First Amended Complaint on or before March 30, 2018. Should Plaintiff fail to f ile his First Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, the entire case shall be dismissed with prejudice for failure to comply with a court order and/or for failure to prosecute his claims. (Amended Pleadings due by 3/30/2018). Signed by Judge Nancy J. Rosenstengel on 2/23/2018. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

GREGORY DISMUKES,
# R33973,

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Plaintiff,
vs.
WARDEN DENNISON,
Defendant.

Case No. 18-cv-153-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Gregory Dismukes, an inmate in Shawnee Correctional Center (“Shawnee”),
brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983.
While Plaintiff was lifting weights in Shawnee’s gym last year, Plaintiff sustained an injury.
Plaintiff contends that Shawnee failed to provide a safe weight lifting environment and seeks to
hold Defendant Dennison, Shawnee’s Warden, liable for his loss. In connection with his claim,
Plaintiff seeks monetary damages. He also seeks counseling and physical therapy.
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

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(2) seeks monetary relief from a defendant who is immune from
such relief.
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 any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (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).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; this action is subject to summary dismissal.
THE COMPLAINT
On May 30, 2017, Plaintiff was lifting free weights in Shawnee’s gym. (Doc. 1, p. 4).
While lifting weights, Plaintiff severed the tip of one of his fingers. Id. The finger could not be
repaired and, on June 1, 2017, the injured finger was amputated at the joint. Id. Plaintiff claims
that the weight bench he was using was shaky and unstable, causing the injury. Id. Plaintiff states
that he “hold[s] Shawnee CC. at fault for [his] los[s]” due to the facility’s “safety neglect.”
(Doc. 1, pp. 4-5). More specifically, Plaintiff contends that Shawnee is subject to liability
because the facility (1) failed to provide proper instructions and/or diagrams regarding how to
safely use the weight lifting equipment, and (2) failed to provide a safe and secure recreational
weight lifting environment. (Doc. 1, p. 4). Plaintiff has filed grievances, but his grievances were
denied, and officials failed to show any remorse for Plaintiff’s injuries. (Doc. 1, p. 5).

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DISCUSSION
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into a single count. The parties and the Court will use this designation in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of this count does not constitute an opinion regarding its merit. Any claims not
addressed in this Order should be considered dismissed without prejudice from this action.
Count 1:

Eighth Amendment claim against Dennison for being negligent in
his duty to provide Plaintiff with a safe environment for lifting
weights.

As a threshold matter, Plaintiff has not stated a claim as to Warden Dennison. Section
1983 creates a cause of action based on personal liability and predicated upon fault; thus, “to be
liable under § 1983, an individual defendant must have caused or participated in a constitutional
deprivation.” Pepper v. Vill. of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005) (citations omitted).
Here, Plaintiff does not allege that Warden Dennison knew about the allegedly hazardous
condition or was otherwise personally involved in the alleged constitutional violation. Further,
because there is no general respondeat superior liability under 42 U.S.C. § 1983, Warden
Dennison cannot be held liable simply because he oversees operations at the prison or supervises
other correctional officers. Burks v. Raemisch, 555 F.3d 592, 594 (7th Cir. 2009).
Even if Plaintiff had named a defendant with personal involvement in the alleged
constitutional violation, he has not alleged a plausible Eighth Amendment violation. A violation
of the Eighth Amendment consists of two elements: (1) objectively, whether the injury is
sufficiently serious to deprive the prisoner of the minimal civilized measure of life’s necessities,
and (2) subjectively, whether the prison official’s actual state of mind was one of “deliberate
indifference” to the deprivation. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

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“[N]ot every deviation from ideally safe conditions constitutes a violation of the
constitution. The Eighth amendment does not constitutionalize torts. Nor does it require
complete compliance with the numerous OSHA regulations.” French v. Owens, 777 F.2d 1250,
1257 (7th Cir. 1985) (quotation marks and citations omitted). Instead, as the Seventh Circuit has
explained:
Conditions of confinement must be severe to support an Eighth Amendment
claim; “the prison officials’ act or omission must result in the denial of ‘the
minimal civilized measure of life’s necessities.’” Farmer [v. Brennan, 511 U.S.
825, 834 (1994)] (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). See
also, Lunsford v. Bennett, 17 F.3d 1574, 1579 (7th Cir. 1994) (the Eighth
Amendment only protects prisoners from conditions that “exceed contemporary
bounds of decency of a mature, civilized society.”); Jackson [v. Duckworth,] 955
F.2d [21,] 22 [(7th Cir. 1992)].
Morissette v. Peters, 45 F.3d 1119, 1123 (7th Cir. 1995) (parallel citations omitted). “An
objectively sufficiently serious risk, is one that society considers so grave that to expose any
unwilling individual to it would offend contemporary standards of decency.” Christopher v.
Buss, 384 F.3d 879, 882 (7th Cir. 2004) (quotation marks and citations omitted). Here, Plaintiff
vaguely alleges that the weight bench was unstable and that the weight room lacked diagrams
regarding how to properly use the equipment. Such allegations fall short of identifying an
objectively serious risk.
Plaintiff also has failed to allege that anyone was deliberately indifferent to a significant
risk of harm. Deliberate indifference is “something approaching a total unconcern for [the
plaintiff’s] welfare in the face of serious risks, or a conscious, culpable refusal to prevent harm.”
Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992). This total disregard for a prisoner’s safety is
the “functional equivalent of wanting harm to come to the prisoner.” McGill v. Duckworth, 944
F.2d 344, 347 (7th Cir. 1991). “[C]onduct is deliberately indifferent when the official has acted
in an intentional or criminally reckless manner, i.e., the defendant must have known that the

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plaintiff was at serious risk of being harmed and decided not to do anything to prevent that harm
from occurring even though he could have easily done so.” Board v. Farnham, 394 F.3d 469,
478 (7th Cir. 2005) (quotation marks, brackets, and citation omitted).
At most, Plaintiff alleges that unspecified officials were negligent in failing to provide a
safe environment for lifting weights. However, “[n]egligence on the part of an official does not
violate the Constitution, and it is not enough that he should have known of a risk. Instead,
deliberate indifference requires evidence that an official actually knew of a substantial risk of
serious harm and consciously disregarded it nonetheless.” Pierson v. Hartley, 391 F.3d 898, 902
(7th Cir. 2004) (citations omitted). Plaintiff does not allege that anyone disregarded a known
dangerous condition. Without more, Plaintiff has failed to state a claim upon which relief can be
granted.
For the reasons set forth above, Plaintiff has failed to allege a plausible claim against
Warden Dennison. Accordingly, the Complaint fails to state a claim. Although the Court has
reservations about whether Plaintiff could state a viable Section 1983 claim against another
defendant, the Court will grant Plaintiff leave to file an amended complaint. If Plaintiff chooses
to file an amended complaint, it should address the deficiencies noted above. In particular,
Plaintiff should name the defendant personally responsible for his injuries. Plaintiff also must
explain how and why there was a significant risk of serious harm to him, and he must explain
how the named defendant was deliberately indifferent to that risk of harm.
DISPOSITION
IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice for
failure to state a claim upon which relief may be granted. Plaintiff is GRANTED leave to file a
“First Amended Complaint” on or before March 30, 2018. Should Plaintiff fail to file his First

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Amended Complaint within the allotted time or consistent with the instructions set forth in this
Order, the entire case shall be dismissed with prejudice for failure to comply with a court order
and/or for failure to prosecute his claims. FED. R. APP. 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);
28 U.S.C. § 1915(e)(2).
Should Plaintiff decide to file a First Amended Complaint, it is strongly recommended
that he use the forms designed for use in this District for such actions. He should label the form,
“First Amended Complaint,” and he should use the case number for this action (i.e. 18-cv-153NJR).
To enable Plaintiff to comply with this Order, the Clerk of Court is DIRECTED to mail
Plaintiff a blank civil rights complaint form.
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. The First Amended Complaint is subject to review pursuant to
28 U.S.C. § 1915(e)(2).
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 a First 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

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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: February 23, 2018
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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