Milletary v. Westville Correctional Facility

Filing 5

OPINION AND ORDER: The Court DISMISSES the complaint DE 1 WITHOUT PREJUDICE, DENIES the motion for leave to proceed in forma pauperis DE 2 , GRANTS Plaintiff to and including 4/27/2018 to file an amended complaint in accordance with this order an d either pay the filing fee or re-file his in forma pauperis petition, making sure that all information is up to date as of the time of filing and CAUTIONS Plaintiff that if he does not respond by the deadline this action is subject to termination without furthernotice. Signed by Judge Rudy Lozano on 3/26/18. (Copy mailed to pro se party). (nal)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

KEVIN LEE MILLETARY,
Plaintiff,
v.
WESTVILLE CORRECTIONAL
FACILITY,
Defendant.

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NO. 2:17-CV-246

OPINION AND ORDER
This matter is before the Court on the Complaint (DE #1) and
the Non-Prisoner Request to Proceed in District Court Without
Prepaying the Filing Fee (DE #2), both filed by Plaintiff, Kevin
Lee Milletary, on June 1, 2017.

For the reasons set forth below,

the Court:
(1) DISMISSES the complaint (DE #1) WITHOUT PREJUDICE;
(2) DENIES the motion for leave to proceed in forma pauperis
(DE #2);
(3) GRANTS Plaintiff to and including April 27, 2018, to file
an amended complaint in accordance with this order and either pay
the filing fee or re-file his in forma pauperis petition, making
sure that all information is up to date as of the time of filing;
and

(4) CAUTIONS Plaintiff that if he does not respond by the
deadline, this action is subject to termination without further
notice.

BACKGROUND
Kevin Lee Milletary (“Plaintiff”) initiated this case by
filing a complaint (DE #1) and petition to proceed in forma
pauperis (“IFP”) (DE #2) on June 1, 2017.

In his complaint,

Plaintiff lists one defendant, the Westville Correctional Facility
(the “WCF”).

While Plaintiff was incarcerated, he worked for the

WCF Maintenance Department.

(DE #1, p. 2.)

Plaintiff alleges

that, in 2016 during the second week of July, the WCF “failed to
provide [him] with eye protection (safety glasses) while [he was]
hammer drilling into a ceiling of metal lath and plaster.”

(Id.)

According to Plaintiff, an unnamed supervisor told him that his
“shop boss” did not issue safety glasses to the workers because
they were “waiting for new ones to come in” and were not readily
available.

(Id. at 2-3.)

As a result, debris from the ceiling

fell into Plaintiff’s right eye, lacerated his cornea, and became
“stuck.”

(Id. at 3.)

Plaintiff allegedly complained of being in

severe pain for two days, before he was taken to a nurse who washed
his eye out and provided drops along with an eye patch to wear for
a week.

(Id.)

After several requests, he was taken to an eye

doctor who determined that Plaintiff has a “scar on [his] right eye
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that

causes

[his]

vision

to

be

permanently

blurry.”

(Id.)

Plaintiff requests monetary relief to “cover the cost to repair
[his] eye and damages for pain and suffering.”

(Id. at 4.)

ANALYSIS
The IFP statute, 28 U.S.C. section 1915, allows an indigent
plaintiff

to

commence

a

civil

action

without

prepaying

administrative costs (e.g. filing fee) of the lawsuit.

the

See 28

U.S.C. § 1915(a)(1); see also Denton v. Hernandez, 504 U.S. 25, 27
(1992). When presented with an IFP application, the district court
makes two determinations: (1) whether the suit has sufficient
merit; and (2) whether the plaintiff’s poverty level justifies IFP
status.

See Denton, 504 U.S. at 27; Smith-Bey v. Hosp. Adm’r, 841

F.2d 751, 757 (7th Cir. 1988).

The screening court must dismiss

the complaint if (a) the allegation of poverty is untrue, (b) the
action is frivolous or malicious, (c) the action fails to state a
claim upon which can be granted, or (d) the action seeks monetary
relief against a defendant who is immune from such relief.

28

U.S.C. § 1915(e)(2).
To determine whether the suit states a claim upon which relief
can be granted under 28 U.S.C. section 1915(e)(2)(B)(ii), a court
applies the same standard as it would to a motion to dismiss filed
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Carter, 224 F.3d 607, 611 (7th Cir. 2000).

DeWalt v.

In deciding a motion to

dismiss under Rule 12(b)(6), a court must accept all well-pleaded

3

factual allegations as true and view them in the light most
favorable to the plaintiff.
F.3d

1014,

1027

(7th

Cir.

Luevano v. WalMart Stores, Inc., 722
2013).

To

survive

dismissal,

a

“complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks and citation omitted).

A plaintiff “must plead some facts

that suggest a right to relief that is beyond the ‘speculative
level.’”
2011).

Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir.
“This means that the complaint must contain allegations

plausibly suggesting (not merely consistent with) an entitlement to
relief.” Lavalais v. Village of Melrose Park, 734 F.3d 629, 632-33
(7th Cir. 2013) (internal quotation marks and citation omitted).

Sufficient Merit
To state a valid cause of action under 42 U.S.C. section 1983,
a plaintiff must allege a violation of rights secured by the
Constitution or laws of the United States and must show that a
person acting under color of state law committed the alleged
deprivation.

West v. Atkins, 487 U.S. 42 (1988).

The ultimate

question in every section 1983 case is whether the plaintiff has
been deprived of a right secured by the Constitution or laws of the
United States.

Baker v. McCollan, 443 U.S. 137, 140 (1979).

In

addressing a claim brought under section 1983, the analysis begins
by

identifying

the

specific

constitutional

4

right

allegedly

infringed by the defendant’s actions.

Graham v. Connor, 490 U.S.

386, 394, (1989). Section 1983 allows suit against any person who,
acting under color of state law, deprives a prisoner of his Eighth
Amendment rights.
2010).

Berry v. Peterman, 604 F.3d 435, 439 (7th Cir.

A violation of the Eighth Amendment’s cruel and unusual

punishments clause 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 official’s actual state of mind was one
of

“deliberate

indifference”

to

the

deprivation.

Farmer

v.

Brennan, 511 U.S. 825, 834 (1994); Wilson v. Seiter, 501 U.S. 294
(1991).
Here, as an initial matter, the Court notes that Plaintiff has
named only WCF as a defendant.

Because the jail is not a suable

entity, and he has not identified or named any other defendants
either individually or otherwise, his claims must be dismissed.
See Smith v. Knox County Jail, 666 F.3d 1037, 1040 (7th Cir. 2012)
(a building is not a suable entity).
Furthermore,

even

if

Plaintiff

had

named

additional

defendants, his complaint as drafted does not state any valid
claims.

Plaintiff alleges that he was not given safety glasses

while working on a ceiling and was injured as a result.

There is

no indication that the policy or practice at WCF was to repeatedly
deny workers proper safety gear; in fact, the complaint suggests
that the lack of safety glasses was a temporary condition, as

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Plaintiff

states

that

new

glasses

facility.

See generally Monell v. Dep’t of Soc. Serv. of City of

New York, 436 U.S. 658 (1978).

were

on

their

way

to

the

Plaintiff also alleges that he has

a permanent scar on his eye that causes his vision to be blurred.
However, he does not allege any deficiencies in practices or
policies related to medical care that caused this condition.

Id.

With regard to potential individual liability, although it may
have been negligent for the supervisor not to provide Plaintiff
with safety glasses, “[n]egligence 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 (7th Cir. 2004) (citations
omitted).

It is not enough to show that a defendant merely failed

to act reasonably.
1995).

Gibbs v. Franklin, 49 F.3d 1206, 1208 (7th Cir.

Here, Plaintiff has not alleged any facts from which it

could be inferred that the supervisor and/or shop boss knew that
working on the ceiling without safety glasses created a serious
safety

risk

or

that

they

were

deliberately

indifferent

to

Plaintiff’s needs.
Similarly, “[f]or a medical professional to be liable for
deliberate indifference to an inmate’s medical needs, he must make
a decision that represents such a substantial departure from
accepted professional judgment, practice, or standards, as to

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demonstrate that the person responsible actually did not base the
decision on such a judgment.”

Jackson v. Kotter, 541 F.3d 688, 697

(7th Cir. 2008) (quotation marks and citations omitted).

Here,

Plaintiff alleges that, after the incident, he complained of eye
pain for two days and was then taken to a nurse who washed his eye
out, provided him with eye drops, and placed a patch over his eye.
After several requests, he was then taken to an eye doctor.

These

allegations are simply insufficient to state a claim against the
nurse for a violation of the Eighth Amendment.
Plaintiff’s complaint is well written, and it does not appear
that he omitted any relevant facts related to the incident or
subsequent medical care.

Nevertheless, if he has facts showing

that a proper defendant is liable for violating his rights, he may
file an amended complaint.
(7th Cir. 2013).

See Luevano v. Wal-Mart, 722 F.3d 1014

If not, he need not file one.

CONCLUSION
For the reasons set forth above, the Court:
(1) DISMISSES the complaint (DE #1) WITHOUT PREJUDICE;
(2) DENIES the motion for leave to proceed in forma pauperis
(DE #2);
(3) GRANTS Plaintiff to and including April 27, 2018, to file
an amended complaint in accordance with this order and either pay
the filing fee or re-file his in forma pauperis petition, making
sure that all information is up to date as of the time of filing;

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and
(4) CAUTIONS Plaintiff that if he does not respond by the
deadline, this action is subject to termination without further
notice.

DATED: March 26, 2018

/s/RUDY LOZANO, Judge
United States District Court

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