VanPatten v. Allen County Jail et al

Filing 15

OPINION AND ORDER GRANTING pltf leave to proceed against Lt Odinger in his individual capacity in violation of the Fourteenth Amendment; GRANTS pltf leave to proceed against Lt Odinger in his individual capacity in violation of the First Amendment; D ISMISSES Allen County Jail, Ken Fries, the Board of County Commissioners, Frank Hart and Allen County Jail Medical; DISMISSES all other claims; DIRECTS the US Marshals Service to effect service of process on Lt Odinger; ORDERS Lt Odinger to respond as outlined. Signed by Chief Judge Philip P Simon on 10/11/11. (jcp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
GERALD PATRICK VAN PATTEN,
Plaintiff,
vs.
ALLEN COUNTY JAIL, et al.,
Defendants.

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CAUSE NO. 1:11-CV-73 PS

OPINION AND ORDER
Gerald Patrick Van Patten, a pro se prisoner, filed a complaint under 42 U.S.C. § 1983.
(DE 1.) Pursuant to 28 U.S.C. § 1915A, I must review the complaint and dismiss it if the action
is frivolous or malicious, fails to state a claim, or seeks monetary relief against a defendant who
is immune from such relief. 28 U.S.C. § 1915A(a), (b). Courts apply the same standard under
Section 1915A as when addressing a motion under FEDERAL RULE OF CIVIL PROCEDURE
12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal, a
complaint must state a claim for relief that is plausible on its face. Bissessur v. Indiana Univ. Bd.
of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at 603. Thus, a “plaintiff must do better than putting a few
words on paper that, in the hands of an imaginative reader, might suggest that something has
happened to her that might be redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400,
403 (7th Cir.2010) (emphasis in original). Nevertheless, “[a] document filed pro se is to be
liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007).
Here, Van Patten complains about a number of conditions at the Allen County Jail.1 First,
he complains that the walls, railings, and showers in his cell block were “covered with mold.”
(DE 1 at 3.) He claims that as a result of coming into contact with the mold he developed a staph
infection on his upper body, which necessitated antibiotics and caused him permanent scars. He
claims that he filed a grievance about the mold but the issue was not remedied. Instead, he claims
that after he filed the grievance Officer Lemish came and told him he had to clean the showers.
When Van Patten asked him why he had to clean the showers, he was told that it was because of
his grievance. Officer Lemish allegedly stated that his shift commander, Lieutenant Odinger,
made the decision to have Van Patten clean the showers, and that Lieutenant Odinger told
Officer Lemish to take Van Patten “to the hole” if he failed to comply. (Id. at 3-4.)
Because Van Patten was a pretrial detainee at the time of these events, the Fourteenth
rather than the Eighth Amendment applies. Lewis v. Downey, 581 F.3d 467, 473-74 (7th Cir.
2009). However, the standards that apply are functionally equivalent, and “anything that would
violate the Eighth Amendment would also violate the Fourteenth Amendment.” Id. at 475. In
evaluating a conditions of confinement claim, courts conduct both an objective and a subjective
inquiry. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective prong asks whether the
alleged deprivation or condition is “sufficiently serious” so that “a prison official’s act results in
the denial of the minimal civilized measure of life’s necessities.” Id. Under this standard,

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Van Patten was transferred to Pendleton Correctional Facility shortly after this action was
filed. (See DE 5.)
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inmates are entitled to be provided with adequate food, clothing, shelter, medical care, bedding,
hygiene materials, and sanitation. Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009); Gillis
v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006). If the conditions pass the objective inquiry, courts
then must determine whether the prison official acted with deliberate indifference to the inmate’s
health or safety. Farmer, 511 U.S. at 834. As the Seventh Circuit has explained:
[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
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) (internal citations and quotation marks
omitted).
Van Patten’s allegations regarding the mold, taken as true, satisfy the objective prong of
the inquiry. Specifically, he alleges that he was housed on a cell block with an excessive amount
of mold, which gave him an infection necessitating medication and resulting in permanent
scarring. With respect to the subjective prong, the complaint alleges that Lieutenant Odinger was
made aware of the mold problem on the cell block, but he did not address the issue other than to
force Van Patten to clean the showers as punishment for his complaining. Giving Van Patten the
inferences to which he is entitled at this stage, he has stated enough to proceed on a Fourteenth
Amendment conditions of confinement claim against Lieutenant Odinger.2
Van Patten’s allegations can also be read to allege a violation of his First Amendment
rights. Under the First Amendment, correctional officials cannot retaliate against a prisoner for
filing a non-frivolous grievance. Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir. 2005); Walker v.

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Van Patten does not name Officer Lemish as a defendant. (See DE 1 at 2.)
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Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002). A prisoner can state a First Amendment
retaliation claim by alleging that he engaged in protected activity, that he suffered retaliation as a
result, and that the defendant retaliated in a manner likely to deter future First Amendment
activity. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). It is sufficient that the inmate
allege a chronology of events from which retaliation can be inferred. Johnson v. Stovall, 233
F.3d 486, 489 (7th Cir. 2000). Here, Van Patten alleges that he filed a grievance over a serious
mold problem on his cell block, and that as punishment Lieutenant Odinger forced him to clean
the showers, which had not been cleaned in more than three weeks. (DE 1 at 3-4.) It can be
inferred that this was a dirty, unpleasant task likely to deter complaints from inmates in the
future. Giving Van Patten the inferences to which he is entitled at this stage, he has alleged a
First Amendment retaliation claim against Lieutenant Odinger.
Van Patten next complains about the food at the jail, specifically, that it was often served
cold. (DE 1 at 4.) This fails to state a constitutional claim, as inmates are entitled to adequate
food but not to food that is tasty, hot, or even appetizing. Lunsford v. Bennett, 17 F.3d 1574,
1578 (7th Cir. 1994); Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988). Although Van
Patten alleges in general terms that he suspects the food trays did not have “enough calories,” he
does not provide any detail about the type of food he was served or explain why he believes the
food was inadequate. (See DE 1 at 4.) He also does not allege any type of injury in connection
with this claim. Van Patten has not alleged a plausible constitutional claim regarding inadequate
food at the jail.
Van Patten next complains about the staff at the jail, specifically, that the nurses ignore
certain inmates’ medical complaints and that the guards sometimes leave their posts to take

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cigarette breaks. (DE 1 at 4, 5.) At most these allegations describe conditions posing a potential
risk of harm to inmates’ health and safety, and an inmate cannot recover under the Eighth
Amendment for the “mere failure to prevent exposure to a risk of harm.” Henderson v. Sheahan,
196 F.3d 839, 848 (7th Cir. 1999). Van Patten does not allege, nor can it be plausibly inferred
from the complaint, that he was denied adequate medical care; instead his allegations show that
he was provided medical treatment for the staph infection he developed.3 (DE 1 at 3.) Similarly,
he does not allege that he suffered an injury as a result of the guards’ practice of leaving their
posts, and he is longer at risk of being harmed since he was transferred to a different correctional
facility several months ago. While these allegations may describe practices at the jail that are
unsafe or unwise, they fail to state a plausible constitutional claim for which Van Patten is
entitled to compensation.
Next, Van Patten alleges that he was not provided with adequate recreational
opportunities. (DE 1 at 5.) Inmates are entitled to adequate recreation, and the Eighth
Amendment may be violated if correctional officials “deny a prisoner all opportunity for exercise
outside his cell.” Delaney v. DeTella, 256 F.3d 679, 687 (7th Cir. 2001). Here, Van Patten’s
complaint makes clear that he was given regular access to a recreation room where he could
walk for exercise. (DE 1 at 5.) Although he apparently did not like the guards’ practice of
directing the inmates to walk even when they did not want to, his allegations do not amount to

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In addition to failing to state a claim for the denial of medical care, Van Patten also does
not name a viable defendant in connection with a medical claim. Instead of naming an individual
defendant he names “Allen County Jail Medical,” which is not a suable entity under state law. See
IND. CODE § 36-1-2-10; Sow v. Fortville Police Dep’t, 636 F.3d 293, 300 (7th Cir. 2011) (in Indiana
only counties, municipalities, townships, and other entities listed in IND. CODE § 36-1-2-10 have the
capacity to sue or be sued for constitutional violations).
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the type of severe deprivation that would state a constitutional claim. See Antonelli v. Sheahan,
81 F.3d 1422, 1432 (7th Cir. 1995) (only extreme and prolonged situations where all movement
is denied will amount to a constitutional violation).
Next, Van Patten complains that he was not permitted to stand near or look out the
windows, which he believes violated his right to adequate sunlight. (DE 1 at 5.) Although
inmates are entitled to adequate shelter, “the Constitution does not mandate comfortable
prisons,” Rhodes v. Chapman, 452 U.S. 337, 349 (1981), and inmates should not expect the
“amenities, conveniences, and services of a good hotel.” Harris v. Fleming, 839 F.2d 1232, 1235
(7th Cir.1988). Van Patten does not allege, nor can it be plausibly inferred from the complaint,
that the jail was unduly dark or that he was deprived of all natural light. He also does not allege
that he suffered a medical problem or other type of injury from a lack of sunlight. The fact that
he could not look out the window when he wished to does not amount to a constitutional
deprivation. See Boyd v. Anderson, 265 F. Supp.2d 952, 966 (N.D. Ind. 2003) (inmate’s
allegation that he was deprived of direct sunlight failed to state a constitutional claim).
As a final matter, Van Patten names Jail Commander Frank Hart, Sheriff Ken Fries, and
the Allen County Board of Commissioners as defendants, without any specific allegations about
their role in these events. Instead, he appears to be trying to hold these defendants liable under a
respondeat superior theory as officials who oversee operations at the jail. There is no general
respondeat superior liability under 42 U.S.C. § 1983, however, and “public employees are
responsible for their own misdeeds but not for anyone else’s.” Burks v. Raemisch, 555 F.3d 592,
596 (7th Cir. 2009). Accordingly, these defendants will be dismissed. Van Patten also names the
jail itself as a defendant, but this is a building, not a person or even a policy-making body that

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can be sued for constitutional violations under 42 U.S.C. § 1983. Accordingly, the jail will also
be dismissed as a defendant.
For these reasons, the court:
(1) GRANTS the plaintiff leave to proceed on a claim against Lieutenant Odinger in his
individual capacity for compensatory damages for housing him in a cell block containing an
excessive amount of mold in violation of the Fourteenth Amendment;
(2) GRANTS the plaintiff leave to proceed on a claim against Lieutenant Odinger in his
individual capacity for compensatory damages for retaliating against him after he filed a
grievance complaining about the mold in violation of the First Amendment;
(3) DISMISSES the Allen County Jail, Ken Fries, the Board of County Commissioners,
Frank Hart, and Allen County Jail Medical;
(4) DISMISSES all other claims;
(5) DIRECTS the United States Marshals Service, pursuant to 28 U.S.C. § 1915(d), to
effect service of process on Lieutenant Odinger; and
(6) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Lieutenant Odinger respond, as
provided for in the FEDERAL RULES OF CIVIL PROCEDURE and N.D. IND. L.R. 10.1, only to the
claims for which the pro se plaintiff has been granted leave to proceed in this screening order.
SO ORDERED.
ENTERED: October 11, 2011.

/s/ Philip P. Simon
Philip P. Simon, Chief Judge
United States District Court

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