DeLuna v. Martinez et al

Filing 4

OPINION AND ORDER: DISMISSES Oscar Martinez, Jr., John Buncich, Nearly, Gone, Leto, and Mattingly; DIRECTS the clerk to place this cause number on a blank Prisoner Complaint (INND Rev. 8/16) form and send it to Mark Anthony DeLuna with a copy of this order; GRANTS him until 4/12/2018, to file an amended complaint; and CAUTIONS him if he does not respond by the deadline, this case will be dismissed without further notice pursuant to 28 U.S.C. § 1915A because the complaint does not state a claim. Signed by Senior Judge James T Moody on 3/12/2018. (Copy mailed to pro se party w/forms)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MARK ANTHONY DeLUNA,
Plaintiff,
v.
OSCAR MARTINEZ, JR., JOHN
BUNCICH, NEARLY, GONE, LETO,
and MATTINGLY,
Defendants.

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No. 2:18 CV 94

OPINION and ORDER
Mark Anthony DeLuna, a pro se prisoner, filed a complaint alleging he contracted
scabies while housed at the Lake County Jail. “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) (internal quotation marks and citations omitted). Nevertheless,
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.
Inmates are entitled to adequate food, clothing, shelter, bedding, hygiene
materials, and sanitation. Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009). However,
a defendant is only liable if deliberately indifferent. 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) (internal 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, none of the six defendants are alleged to have been deliberately indifferent
to exposing DeLuna to scabies. 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). DeLuna argues the defendants knew the incoming inmates were not being
given showers to decontaminate them. However, showering inmates would not prevent
scabies. Treatment for scabies requires medication available only with a prescription.
See Scabies Frequently Asked Questions, Centers for Disease Control and Prevention
website, available at https://www.cdc.gov/parasites/scabies/gen_info/faqs.html.
DeLuna also alleges he was denied medical treatment for scabies for a month. He
says he wants to add the Medical Director as a John or Jane Doe defendant. However,
“it is pointless to include lists of anonymous defendants in federal court; this type of
placeholder does not open the door to relation back under Fed. R. Civ. P. 15, nor can it
otherwise help the plaintiff.” Wudtke v. Davel, 128 F.3d 1057, 1060 (7th Cir. 1997)
(citations omitted). Moreover, even if he knew the name of the Director, he has not
alleged any facts showing the Medical Director knew he had scabies and was
deliberately indifferent to providing him with treatment.

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Nevertheless, DeLuna may file an amended complaint if he can name a medical
provider who knew he had scabies but was deliberately indifferent and refused to treat
him. See Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013). If he files an amended
complaint, he needs to explain what he told the medical provider and what the medical
provider saw and understood about his condition. He must describe each conversation
with the medical provider and describe how the provider responded. He must also
explain how the provider was deliberately indifferent. He must explain when, how, and
from whom he finally obtained medical treatment. He must name the medical provider
in the caption of the case as well as in the body of the complaint.
For the foregoing reasons, the court:
(1) DISMISSES Oscar Martinez, Jr., John Buncich, Nearly, Gone, Leto, and
Mattingly;
(2) DIRECTS the clerk to place this cause number on a blank Prisoner Complaint
(INND Rev. 8/16) form and send it to Mark Anthony DeLuna with a copy of this order;
(3) GRANTS Mark Anthony DeLuna until April 12, 2018, to file an amended
complaint; and
(4) CAUTIONS Mark Anthony DeLuna if he does not respond by the deadline,
this case will be dismissed without further notice pursuant to 28 U.S.C. § 1915A because
the complaint does not state a claim.
SO ORDERED.
Date: March 12, 2018

s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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