Johnson v. Griffin et al

Filing 5

OPINION AND ORDER : The Court GRANTS Stephen Johnson leave to proceed against M. Clark for spraying him with pepper spray; GRANTS Stephen Johnson leave to proceed against M. Clark for preventing him from receiving medical treatment; DISMISSED all ot her claims; DISMISSES K. Griffin, L. Tucker, John Doe, Lt. Green, Ofc. Middleton, Lt. Traux, Nurse Ashley, Nurse Shalana, and Corizon Medical; DIRECTS the Clerk and the United States Marshals Service to issue and serve process on M. Clark at the Indiana Department of Correction and ORDERS M. Clark to respond only to the claims for which plaintiff has been granted leave to proceed. Signed by Judge Rudy Lozano on 3/20/2018. (Copy mailed to pro se party)(jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
STEPHEN JOHNSON,
Plaintiff,
v.

2:17-CV-335

K. GRIFFIN, et al.,
Defendants.
OPINION AND ORDER
Stephen

Johnson,

a

prisoner

without

a

lawyer,

filed

a

complaint against ten defendants based on events which occurred at
the Miami Correctional Facility. “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) (quotation marks and citations omitted). Nevertheless,
pursuant to 28 U.S.C. § 1915A, a 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.
Johnson alleges Officer M. Clark stopped him while he was
entering Medical on March 6, 2017, and asked why he was there.
Johnson said he was diabetic and had a medical emergency. Officer

Clark ordered Johnson to return to his dorm. Nurse Ashley told
Officer Clark that Johnson was a diabetic patient and looked dizzy.
Nevertheless, Officer Clark pointed a can of pepper spray at
Johnson and told him he had 3 seconds. Then Officer Clark sprayed
Johnson.
The “core requirement” for an excessive force claim is that
the defendant “used force not in a good-faith effort to maintain
or restore discipline, but maliciously and sadistically to cause
harm.” Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir. 2009)
(internal citation omitted). “[T]he question whether the measure
taken

inflicted

unnecessary

and

wanton

pain

and

suffering

ultimately turns on whether force was applied in a good faith
effort

to

maintain

or

restore

discipline

or

maliciously

and

sadistically for the very purpose of causing harm.” Whitley v.
Albers, 475 U.S. 312, 320-21 (1986) (quotation marks and citation
omitted). Based on the facts alleged, Johnson has stated a claim
against Officer Clark for using excessive force against him in
violation of the Eighth Amendment.
In addition, Johnson also states a claim against Officer Clark
for denying him medical treatment in violation of the Eighth
Amendment. In medical cases, the Eighth Amendment test is expressed
in terms of whether the defendant was deliberately indifferent to
the plaintiff’s serious medical need. Estelle v. Gamble, 429 U.S.
97 (1976). A medical need is “serious” if it is “one that has been

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diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity
for a doctor’s attention.” Greeno v. Daley, 414 F.3d 645, 653 (7th
Cir.

2005).

Here,

Officer

Clark

prevented

Nurse

Ashley

from

providing medical treatment to Johnson.
Johnson names nine other defendants, but he does not state a
claim against any of them. Nurse Ashley is only alleged to have
tried to explain Johnson’s need for medical care to Officer Clark.
Nurse Shalana is alleged to have twice provided him medical
treatment for his diabetes. Neither are alleged to have denied him
proper

medical

treatment.

Corizon

Medical

is

alleged

to

be

responsible for medical services, but they are not alleged to have
done anything to prevent Johnson from receiving proper medical
services.
Johnson alleges Officer Middleton saw Officer Clark spray
him. State actors “who have a realistic opportunity to step forward
and prevent a fellow [state actor] from violating a plaintiff’s
right through the use of excessive force but fail to do so” may be
held liable. Miller v. Smith, 220 F.3d 491, 495 (7th Cir.2000)
(citing Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). Here, it
is unclear how long Officer Clark spoke to Johnson, but it is clear
that from the time the can of pepper spray was pointed at Johnson
until it was deployed was only a few seconds. This did not give
Officer Middleton a realistic opportunity to intervene.

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The other five defendants (Superintendent K. Griffen, Major
Tucker, Captain John Doe, Lt. Green, and Lt. Truax) are only
alleged to be supervisors or to have been told about Officer
Clark’s actions after the fact. However, there is no general
respondeat superior liability under 42 U.S.C. § 1983. “Only persons
who cause or participate in the violations are responsible.” 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).
Burks’s 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). Therefore,
Johnson has not stated a claim against these five defendants.
Finally, Johnson attempts to raise several State law claims.
In Indiana, filing a timely notice of tort claim is a procedural
prerequisite to bring a tort action based on these facts. Here,
Johnson has not plausibly alleged that he filed a notice of tort
claim as required by the Indiana Tort Claims Act, Indiana Code §
34-13-3 et seq. Therefore he may not proceed on State law claims.
For these reasons, the Court:

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(1) GRANTS Stephen Johnson leave to proceed against M. Clark
in his individual capacity for compensatory damages for spraying
him with pepper spray on March 6, 2017, in violation of the Eighth
Amendment;
(2) GRANTS Stephen Johnson leave to proceed against M. Clark
in his individual capacity for compensatory damages for preventing
him from receiving medical treatment for diabetes from Nurse Ashley
on March 6, 2017, in violation of the Eighth Amendment;
(3) DISMISSES all other claims;
(4) DISMISSES K. Griffin, L. Tucker, John Doe, Lt. Green, Ofc.
Middleton, Lt. Truax, Nurse Ashley, Nurse Shalana, and Corizon
Medical;
(5) DIRECTS the clerk and the United States Marshals Service
to issue and serve process on M. Clark at the Indiana Department
of Correction with a copy of this order and the complaint (ECF 1)
as required by 28 U.S.C. § 1915(d); and
(6) ORDERS, pursuant to 42 U.S.C. §1997e(g)(2), M. Clark to
respond, as provided for in the Federal Rules of Civil Procedure
and N.D. Ind. L.R. 10-1(b), only to the claims for which the
plaintiff has been granted leave to proceed in this screening
order.

DATE: March 20, 2018

/s/RUDY LOZANO
United States District Court

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