Stone v. Leavenhagen et al

Filing 6

OPINION AND ORDER: GRANTING the plaintiff leave to proceed against Mark Levenhagen and Mike Scott in their individual capacities for monetary damages for failing to protect him from violence by other inmates; DISMISSING any and all other claims con tained in the complaint; DIRECTING the U.S. Marshals Service to effect service of process on Mark Levenhagen and Mike Scott pursuant to 28:1915(d); and ORDERING Mark Levenhagen and Mike Scott to respond, as provided for in the FEDERAL RULES OF CIVIL PROCEDURE, only to the claim for which the pro se plaintiff has been granted leave to proceed in this screening order. Signed by Chief Judge Philip P Simon on 8/25/2014. (lhc)(cc: USMS)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
LARRY ALLEN STONE,
Plaintiff,
vs.
MARK LEVENHAGEN, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

CAUSE NO. 1:14-CV-211 PS

OPINION AND ORDER
Larry Allen Stone, 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. 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 (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. I must bear in mind that a pro se
complaint is entitled to liberal construction, “however inartfully pleaded.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
Here, Stone alleges that two officials at Westville Correctional Facility
(“Westville”) failed to protect him from assaults by other inmates. He claims that he
was housed at Westville between January and March 2013, and was targeted by other
inmates because he is white. He claims he was beaten in January, and complained in

writing several times to Superintendent Mark Levenhagen and Assistant
Superintendent Mike Scott that he was in fear for his safety and in need of protective
custody. They allegedly ignored his requests for a period of months, during which time
he was beaten two more times. During one of these incidents he was“jumped” by
another inmate and hit in the eye with a padlock, causing him significant injuries. He
claims he ultimately told the defendants he was going to “pick up a knife” and defend
himself from any further attacks, and at that point he was placed in protective custody.
He claims that the delay in placing him in protective custody caused him physical
injuries and emotional suffering.
Under the Eighth Amendment, correctional officials have a constitutional duty to
protect inmates “from violence at the hand of other inmates.” Grieveson v. Anderson, 538
F.3d 763, 777 (7th Cir. 2008). Nevertheless, “prisons are dangerous places. Inmates get
there by violent acts, and many prisoners have a propensity to commit more.” Id.
Therefore, a failure to protect claim cannot be predicated “merely on knowledge of
general risks of violence in a detention facility.” Brown v. Budz, 398 F.3d 904, 913 (7th
Cir. 2005). By the same token, “[a] failure to protect claim may sound against even a
‘high-level’ official so long as the averred risk is specific to [an inmate], and not a mere
general risk of violence.” Id. at 909.
Here, taking Stone’s allegations as true, he claims that he conveyed to the
defendants several times that he was being targeted by other inmates, was in fear for his
safety, and was in need of protective custody. He claims they ignored him for a period
2

of months, during which time he suffered two more assaults, including a serious
beating that caused injuries to his eye. Giving Stone the inferences to which he is
entitled at this stage, he has alleged enough to proceed on a deliberate indifference
claim against the defendants.1
For these reasons, the court:
(1) GRANTS the plaintiff leave to proceed against Mark Levenhagen and Mike
Scott in their individual capacities for monetary damages for failing to protect him from
violence by other inmates;
(2) DISMISSES any and all other claims contained in the complaint;
(3) DIRECTS the U.S. Marshals Service to effect service of process on Mark
Levenhagen and Mike Scott pursuant to 28 U.S.C. § 1915(d); and
(4) ORDERS Mark Levenhagen and Mike Scott to respond, as provided for in the
FEDERAL RULES OF CIVIL PROCEDURE, only to the claim for which the pro se plaintiff has
been granted leave to proceed in this screening order.
SO ORDERED.
ENTERED: August 25, 2014.

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

1

In addition to seeking damages, Stone mentions in passing that he would “like this court to file
a restraining order on my behalf” against the defendants. (DE 1 at 5.) It is not clear what type of injunctive
relief he might be seeking, but he is no longer housed at Westville. (See DE 1 at 1, DE 4.) He does not claim,
nor is there any plausible basis to infer, that he is likely to be transferred back to Westville anytime in the near
future. Accordingly, he has no claim for injunctive relief against the Westville defendants. Higgason v. Farley,
83 F.3d 807, 811 (7th Cir. 1996) (“If a prisoner is transferred to another prison, his request for injunctive relief
against officials of the first prison is moot unless he can demonstrate that he is likely to be retransferred.”).
If this changes during the course of the litigation, he is free to renew his request for injunctive relief.

3