Jackson v. Himelick et al

Filing 38

OPINION AND ORDER: The Court GRANTS Ricky Lynn Jackson, Sr., leave to proceed on a Fourteenth Amendment claim for compensatory damages against Lt. Jail Commander Cathy Lee in her individual capacity for taking his medically prescribed extra mat on May 9, 2015; DISMISSES all other claims; DISMISSES Sheriff Darrell Himelick and Captain Randy Albertson; DIRECTS the Clerk to transmit the summons and USM-285 forms for Lt. Jail Commander Cathy Lee to the USMS along with a copy of the amended comp laint 28 and this order; DIRECTS the USMS, pursuant to 28:1915(d), to effect service of process on Lt. Jail Commander Cathy Lee; and ORDERS, pursuant to 42:1997e(g)(2), that she respond, as provided for in the Fed R Civ P and N.D. Ind. L.R. 10-1(b), only to the claim for which the pla has been granted leave to proceed in this screening order. Signed by Judge Rudy Lozano on 8/10/2015. (lhc)(cc: Pla and USMS)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
RICKY LYNN JACKSON, SR.,
Plaintiff,
vs.
DARRELL HIMELICK, et al.,
Defendants.

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CAUSE NO. 1:14-CV-368

OPINION AND ORDER
This matter is before the Court on the amended complaint filed
pursuant to 42 U.S.C. § 1983 by Ricky Lynn Jackson, Sr., a pro se
prisoner, on June 12, 2015. For the reasons set forth below, the
Court: (1) GRANTS Ricky Lynn Jackson, Sr., leave to proceed on a
Fourteenth Amendment claim for compensatory damages against Lt.
Jail Commander Cathy Lee in her individual capacity for taking his
medically prescribed extra mat on May 9, 2015; (2) DISMISSES all
other claims; (3) DISMISSES Sheriff Darrell Himelick and Captain
Randy Albertson; (4) DIRECTS the Clerk to transmit the summons and
USM-285 forms (DE 5-1 at 1-2 and DE 5-2 at 3) for Lt. Jail
Commander Cathy Lee to the United States Marshals Service along
with a copy of the amended complaint (DE 28) and this order; (5)
DIRECTS the United States Marshals Service, pursuant to 28 U.S.C.
§ 1915(d), to effect service of process on Lt. Jail Commander Cathy
Lee; and (6) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Lt.
Jail Commander Cathy Lee respond, as provided for in the Federal
Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the

claim for which the plaintiff has been granted leave to proceed in
this screening order.

BACKGROUND
Jackson alleges that on September 25, 2014, after fighting
with a fellow inmate, Lt. Jail Commander Cathy Lee ordered that he
be placed in a one man holding cell and charged with fighting. He
alleges that he complained to the guard who placed him in the
holding cell that he needed immediate medical attention. He alleges
that guard told another guard who responded by repeating that Lt.
Lee had ordered that Jackson be placed in the holding cell. On
October 1, 2014, Lt. Lee visited his cell and had him taken to
medical for a free examination of his hand. Jackson alleges that he
also needed treatment for his back, but that she told him that he
was required to pay a $15.00 co-pay. On November 25, 2015, he was
seen by medical staff for his back and provided with treatment
which included an extra bed mat. On May 9, 2015, he alleges that
Lt. Lee took his extra mat without a doctor’s approval. Jackson
filed grievances about these events with Sheriff Darrell Himelick
and Captain Randy Albertson, but they did not respond.

DISCUSSION
“A document filed pro se is to be liberally construed, and a
pro se complaint, however inartfully pleaded, must be held to less

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stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and
citations omitted). However, pursuant to 28 U.S.C. § 1915A, the
court must review the merits of a prisoner complaint and dismiss it
if the action is frivolous or malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief against
a defendant who is immune from such relief. “In order to state a
claim under § 1983 a plaintiff must allege: (1) that defendants
deprived him of a federal constitutional right; and (2) that the
defendants acted under color of state law.” Savory v. Lyons, 469
F.3d 667, 670 (7th Cir. 2006).
A complaint must contain sufficient factual matter to “state
a claim that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility
when the pleaded factual content 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)
(citing Twombly, 550 U.S. at 556). “Factual allegations must be
enough to raise a right to relief above the speculative level, on
the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Twombly, 550 U.S. at 555 (quotation
marks, citations and footnote omitted). “[W]here the well-pleaded
facts

do

not

permit

the

court

to

infer

more

than

the

mere

possibility of misconduct, the complaint has alleged—but it has not

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shown—that the pleader is entitled to relief.’” Iqbal, 556 U.S. at
679 (quotation marks and brackets omitted). 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).
At the time of these events, Jackson was a pre-trail detainee
at the jail. “Although the Eighth Amendment applies only to
convicted persons, pretrial detainees . . . are entitled to the
same basic protections under the Fourteenth Amendment’s due process
clause. Accordingly, [courts] apply the same legal standards to
deliberate indifference claims brought under either the Eighth or
Fourteenth Amendment.” Minix v. Canarecci, 597 F.3d 824, 831 (7th
Cir. 2010).
Jackson is suing Lt. Lee for ordering his placement in a one
man holding cell and charging him with fighting. Jackson argues
that he was acting in self defense. However, “inmates do not have
a constitutional right to raise self-defense as a defense in the
context of prison disciplinary proceedings.” Jones v. Cross, 637
F.3d 841, 848 (7th Cir. 2011). After the fight, it was necessary
for the jail to re-establish order and “[c]oncerns of security are
to be given ‘particular sensitivity.’” Koger v. Bryan, 523 F.3d
789, 800 (7th Cir. 2008). “[A] prison’s internal security is
peculiarly a matter normally left to the discretion of prison

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administrators [because p]rison administrators should be accorded
wide-ranging deference in the adoption and execution of policies
and practices that in their judgment are needed to preserve
internal

order

security.”

and

Whitley

discipline
v.

Albers,

and
475

to

maintain

U.S.

312,

institutional
321–22

(1986)

(quotation marks and ellipsis omitted). Thus, Jackson has not
stated a claim for being placed in a holding cell or for being
charged with fighting.
Jackson alleges that Lt. Lee denied him medical treatment by
ordering his placement in the holding cell. However, he does not
allege that she knew of his injuries when she gave that order.
Though he alleges that he told guards that worked for her, there is
no general respondeat superior liability under 42 U.S.C. § 1983, so
the allegation someone else knew about his need for medical
treatment does not state a claim against her. George v. Smith, 507
F.3d 605, 609 (7th Cir. 2007). “[P]ublic employees are responsible
for their own misdeeds but not for anyone else’s.” Burks v.
Raemisch, 555 F.3d 592, 596 (7th Cir. 2009). Nevertheless, it is
clear she knew of his need for medical treatment once she visited
his cell on October 1, 2014. However, she did not deny him medical
care on that date. Rather he had his hand examined by medical staff
without cost. Jackson complains that he needed treatment for his
back but that she denied him that treatment by requiring that he
pay a $15.00 co-pay. However, the Constitution does not require

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free medical care, Poole v. Isaacs, 703 F.3d 1024, 1027 (7th Cir.
2012), and Jackson had as much as $34.49 in his commissary account
on that day. DE 6 at 10. On many days thereafter and

before he was

ultimately seen for his back on November 25, 2014, he had more than
$15.00 in his account, but he decided to spend it on other things.
DE 6 at 10-14. Because he was able to afford to pay for medical
treatment, Lt. Lee did not deny him care by requiring that he do
so.
Jackson alleges that Lt. Lee took his medically prescribed
extra mat on May 9, 2015. In medical cases, the Constitution is
violated only when a defendant was deliberately indifferent to an
inmate’s serious medical needs. Gutierrez v. Peters, 111 F.3d 1364,
1369 (7th Cir. 1997). “[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)
(quotation marks, brackets, and citation omitted). “Negligence on
the part of an official does not violate the Constitution, and it
is not enough that he or she 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

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(7th Cir. 2004) (citations omitted). It is not enough to show that
a defendant merely failed to act reasonably. Gibbs v. Franklin, 49
F.3d 1206, 1208 (7th Cir. 1995). Even incompetence does not state
a claim of deliberate indifference. Walker v. Peters, 233 F.3d 494
(7th Cir. 2000). Here, it is plausible to infer that Jackson is
alleging that Lt. Lee knew that his extra mat had been prescribed
by a doctor and that she was denying him medical treatment when she
took it. Therefore he will be granted leave to proceed on this
claim.
Finally, Jackson alleges that Sheriff Darrell Himelick and
Captain Randy Albertson did not respond to his grievances. However,
“the

alleged

mishandling

of

[his]

grievances

by

persons

who

otherwise did not cause or participate in the underlying conduct
states no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir.
2011).
[The] view that everyone who knows about a prisoner’s
problem must pay damages implies that he could write
letters to the Governor of Wisconsin and 999 other public
officials, demand that every one of those 1,000 officials
drop everything he or she is doing in order to
investigate a single prisoner’s claims, and then collect
damages from all 1,000 recipients if the letter-writing
campaign does not lead to better medical care. That can’t
be right.”
Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). Thus Jackson
does not state a claim against either Sheriff Himelick or Captain
Albertson and they will be dismissed.

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CONCLUSION
For the reasons set forth above, the Court: (1) GRANTS Ricky
Lynn Jackson, Sr., leave to proceed on a Fourteenth Amendment claim
for compensatory damages against Lt. Jail Commander Cathy Lee in
her individual capacity for taking his medically prescribed extra
mat on May 9, 2015; (2) DISMISSES all other claims; (3) DISMISSES
Sheriff Darrell Himelick and Captain Randy Albertson; (4) DIRECTS
the Clerk to transmit the summons and USM-285 forms (DE 5-1 at 1-2
and DE 5-2 at 3) for Lt. Jail Commander Cathy Lee to the United
States Marshals Service along with a copy of the amended complaint
(DE 28) and this order; (5) DIRECTS the United States Marshals
Service, pursuant to 28 U.S.C. § 1915(d), to effect service of
process on Lt. Jail Commander Cathy Lee; and (6) ORDERS, pursuant
to 42 U.S.C. § 1997e(g)(2), that Lt. Jail Commander Cathy Lee
respond, as provided for in the Federal Rules of Civil Procedure
and N.D. Ind. L.R. 10-1(b), only to the claim for which the
plaintiff has been granted leave to proceed in this screening
order.

DATED: August 10, 2015

/s/RUDY LOZANO, Judge
United State District Court

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