Fisher v. LaPorte County Jail et al

Filing 93

OPINION AND ORDER: GRANTING 86 Motion to file second amended complaint; GRANTING pltf leave to proceed against defts Hackett and Bell in individual capacities for damages on 14th Amendment claim; DISMISSING all other claims; DISMISSING Defts Sheriff, John Doe and Mike Mollenhauer; DIRECTING USM to effect service of process on Bell and Hackett; ORDERING defts to respond to Second Amended Complaint. Signed by Judge Rudy Lozano on 6/17/11. (jld)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
PAUL FISHER,
Plaintiff,
vs.
LAPORTE COUNTY JAIL, et al.,
Defendants.

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CAUSE NO. 3:09-CV-369

OPINION AND ORDER
This matter is before the Court on the Plaintiff’s motion for
leave to file a second amended complaint and for screening his
second amended complaint pursuant to 28 U.S.C. section 1915A.

For

the reasons set forth below, the Court GRANTS the Plaintiff’s
motion for leave to file an amended complaint, GRANTS him leave to
proceed

against

Captain

Bell

and

Sergeant

Hackett

in

their

individual capacities on his Fourteenth Amendment claim that they
failed to protect him from being attacked and injured by other
inmates, and DISMISSES the remaining claims and Defendants.

BACKGROUND
Plaintiff, Paul Fisher, a prisoner currently confined at the
Westville Correctional Facility, filed a pro se complaint pursuant
to 42 U.S.C. section 1983 dealing with events that occurred at the
LaPorte County Jail while he was confined there in 2009 as a
pretrial detainee.

The Court struck the original complaint, and

the Plaintiff filed an amended complaint, which the Court screened

and

allowed

Mollenhauer.

the

Plaintiff

to

proceed

against

Sheriff

Mike

In his second amended complaint, the Plaintiff names

Sheriff Mike Mollenhauer, Captain Bell, Sergeant Hackett, and three
John Doe defendants, alleging that they did not protect him from
being attacked and injured by inmates Merwin and Derrick.

DISCUSSION
Pursuant to 28 U.S.C. section 1915A(a), district courts 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. Fed. R. Civ. P. 12(b)(6) provides
for the dismissal of a complaint, or any portion of a complaint,
for failure to state a claim upon which relief can be granted.
Courts

apply

the

same

standard

under

addressing a motion under Rule 12(b)(6).

section

1915A

as

when

Lagerstrom v. Kingston,

463 F.3d 621, 624 (7th Cir. 2006).
The pleading standards in the context of a motion to dismiss
for failure to state a claim are that the “plaintiff’s obligation
to provide the grounds of his entitlement to relief requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. 544, 555 (2007).

Bell Atlantic v.

In the context of pro se

litigation, the Supreme Court stated that “[s]pecific facts are not
necessary” to meet the requirements of Rule 8(a).

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The Court

further noted that 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

quotations and citation omitted).
In his earlier complaints, Fisher alleged that jail officials
failed to protect him from being attacked and injured by Merwin and
Derrick.

The

court

allowed

him

to

proceed

against

Sheriff

Mollenhauer because giving him the benefit of the inferences to
which he was entitled, it could not say that no relief could be
granted against the Sheriff under any set of facts that could be
proved consistent with his failure to protect allegations.
In his second amended complaint Fisher reiterates his claim
that LaPorte County Jail officials failed to protect him from being
attacked by Merwin and Derrick, even though they knew those inmates
posed a theat to him, and states his claim with more specificity.
Fisher alleges that he was attacked by Merwin and Derrick on June
1, 2009, and that several custody officers including Defendants
Bell and Hackett came to the unit and investigated the incident.
“Jail officials saw the plaintiff’s injuries, further the plaintiff
informed [Sgt. Hackett, Cpt. Bell and sever[sic] other officer’s]
that he feared for his safety, that he might be attacked again, and
requested to be moved to another unit.”

(DE 86-1 at 3).

But

despite

both

his

these

facts,

the

assailants on the unit.

officers

left

Fisher

and

The next day, Sgt. Hackett told the

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inmates on the unit:
that the incident from the previous day was not to be
repeated, [then] he ordered all the doors to be opened so
that the inmates could eat lunch. Immediately after he
left the unit while the doors were still open the
plaintiff was again attacked [by the inmates who had
assaulted him the previous day] while sleeping with “soap
socks.”
DE 86-1 at 4.
Fisher alleges that he was severely injured during this attack
and “received five [5] staples to close the wound in the back of
[his] head and three (3) staples to close the wound in [his] left
arm” (DE 86-1 at 4).

He asserts that Defendants Bell and Hackett

“knew there was a substantial risk that I would be attacked again
resulting in serious harm and disregarded that risk by failing to
take reasonable measures to abate it.” (DE 86-1 at 4).
When addressing claims brought under section 1983, analysis
begins by identifying the specific constitutional right allegedly
infringed by defendants.
(1989).

Graham v. Conner, 490 U.S. 386, 394,

The Eighth Amendment protects convicted prisoners from

cruel and unusual punishments.
n. 16 (1979).

Bell v. Wolfish, 441 U.S. 520, 535

The rights of pre-trial detainees are derived from

the Fourteenth Amendment’s Due Process Clause.

Id.

Because the Plaintiff was a pretrial detainee when Merwin and
Derrick

attacked

Amendment.

him,

his

claims

arise

under

the

Fourteenth

But “there is little practical difference between the

standards utilized under the two amendments.” Garvin v. Armstrong,

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236 F.3d 896, 898 (7th Cir. 2001), citing Weiss v. Cooley, 230 F.3d
1027, 1032. “An act or practice that violates the eighth amendment
also violates the due process rights of pretrial detainees.”
Martin v. Tyson, 845 F.2d 1451, 1457 (7th Cir. 1988).
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 prison 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).
Prison and jail officials “have a duty . . . to protect
prisoners from violence at the hands of other prisoners.”

Farmer

v. Brennan, 511 U.S. at 833, quoting Cortes-Quinones v. JimenezNettleship,

842

indifference

F.2d

in

such

recklessness.”
under

the

556,

558

circumstances

Id. at 839-840.

Eighth

(1st

Amendment

Cir.
is

1988).

defined

Deliberate
as

“criminal

An “official may be held liable

for

denying

humane

conditions

of

confinement only if he knows that inmates face a substantial risk
of serious harm and disregards that risk by failing to take
reasonable measures to abate it.”

Id. at 847.

Deliberate indifference is shown by “something approaching a
total unconcern for [the plaintiff’s] welfare in the face of
serious risks, or a conscious, culpable refusal to prevent harm.”

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Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992), citing McGill v.
Duckworth, 944 F.2d 344, 347 (7th Cir. 1991).

A defendant must

have “actual knowledge of impending harm easily preventable, so
that a conscious, culpable refusal to prevent the harm can be
inferred from the defendant’s failure to prevent it.” Duckworth v.
Franzen, 780 F.2d 645, 653 (7th Cir.), cert. denied, 479 U.S. 816
(1986)(abrogated on other grounds); see Sellers v. Henman, 41 F.3d
1100 (7th Cir. 1994); Duane, 959 F.2d at 677. This total disregard
for a prisoner’s safety is the “functional equivalent of wanting
harm to come to the prisoner.”

McGill, 944 F.2d at 347.

“Fed. R. Civ. P. 8 establishes a system of notice pleading,”
and a complaint may not be dismissed at the pleadings stage “unless
no relief could be granted ‘under any set of facts that could be
proved consistent with the allegations.’”

Nance v. Vieregge, 147

F.3d 589, 590 (7th Cir. 1998), quoting Hishon v. King & Spalding,
467

U.S.

69,

73

(1984).

Giving

Fisher

the

benefit

of

the

inferences to which he is entitled at the pleadings stage, he
states a viable Fourteenth Amendment failure to protect claim
against Defendants Bell and Hackett.
In addition to the named defendants, Fisher seeks to sue three
John Doe defendants, who he alleges were custody officers at the
jail. The United States Marshal’s office is charged with effecting
service of process for inmates confined in state penal institutions. “When the district court instructs the Marshal to serve
papers on behalf of a prisoner, the prisoner need furnish no more

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than the information necessary to identify the defendant.” Sellers
v. United States, 902 F.2d 598, 602 (7th Cir. 1990). “The Marshals
Service needs from the prisoner information sufficient to identify
the guard (‘John Doe No. 23' won't do)” Id. at 602.

Because Fisher

has not provided the information necessary to identify the Doe
defendants in this case, the Marshal can not serve them with
process, and the Court cannot acquire personal jurisdiction over
them.
[I]t 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).
Accordingly, the court will dismiss the Doe defendants. If
Fisher is able to identify these officers through discovery, he may
seek to amend his complaint to add them as defendants.

He must

amend his complaint to name them, and he must provide the materials
necessary for the Marshals Service to serve them with process.
The second amended complaint also names Sheriff Mollenhauser
as a defendant. Section 1983 creates a cause of action for damages
based on personal liability; a plaintiff must show a defendant’s
personal involvement or participation, or direct responsibility for
the conditions of which he complains. Rascon v. Hardiman, 803 F.2d
269, 273 (7th Cir. 1986); Wolf-Lillie v. Sonquist, 699 F.2d 864,
869 (7th Cir. 1983).

The doctrine of respondeat superior, under

which a supervisor may be held liable for an employee’s actions,
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has no application to section 1983 actions.

Gayton v. McCoy, 593

F.3d 610, 622 (7th Cir. 2010).
When it screened the Plaintiff’s first amended complaint, the
Court permitted him to proceed against Sheriff Mollenhauser.

The

Court subsequently denied the Sheriff’s motion for judgment on the
pleadings asserting lack of personal involvement because it could
not determine from the amended complaint that he had no personal
involvement in the events that led to Fisher being injured.
Fisher’s second amended complaint states the facts supporting
his claim with more specificity, which establish the involvement of
Captain Bell and Sergeant Hackett in the events that led to his
being assaulted the second time by Merwin and Derrick.

But the

second amended complaint does not state facts from which the Court
could infer that Sheriff Mollenhauer had any personal knowledge of
or direct personal involvement in the events that led to Fisher’s
being injured by Merwin and Derrick on June 2, 2009.

That Sheriff

Mollenhauer is Captain Bell and Sergeant Hackett’s superior does
not make him liable for their actions under the doctrine of
respondeat superior. Gayton v. McCoy, 593 F.3d at 622.
In the proper circumstances, a prisoner could maintain an
official capacity claim against Sheriff Mollenhauer.

An official

capacity damage claim against a municipal official “is not a suit
against the official as an individual; the real party in interest
is the entity.”

Wilson v. Civil Town of Clayton, Indiana, 839 F.2d

375, 382 (7th Cir. 1988). Municipalities cannot be held liable for
damages under section 1983 unless a governmental policy or custom
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caused the alleged violation of the plaintiff’s rights.

Monell v.

Department of Social Services, 436 U.S. 658, 694 (1978).
A “custom” or “policy” can take one of three forms: (1)
an express policy that, when enforced, causes a
constitutional deprivation; (2) a widespread practice,
that, although not authorized by written law or express
municipal policy, is so permanent and well-settled as to
constitute a “custom or usage” with force of law; or (3)
an allegation that the constitutional injury was caused
by a person with final policy-making authority.
Brokaw v. Mercer County, 235 F.3d 1000, 1113 (7th Cir. 2000).
“Ordinarily, one incident is not sufficient to establish a custom
that can give rise to Monell liability.” Williams v. Heavener, 217
F.3d 529, 532 (7th Cir. 2000), citing Calusinski v. Kruger, 24 F.3d
931, 936 (7th Cir.1994).
Nothing

in

the

second

amended

complaint

suggests

that

Defendants Bell and Hackett’s actions were the result of a policy
or practice established or sanctioned by Sheriff Mollenhauer.
Accordingly, Fisher has not stated an official capacity damage
claim against the Sheriff.

CONCLUSION
For the foregoing reasons, the Court:
(1) GRANTS the Plaintiff’s motion for leave to file an amended
complaint (DE 86), and DIRECTS the Clerk to file the Plaintiff’s
second amended complaint (DE 86-1);
(2) GRANTS the Plaintiff leave to proceed against Defendants
Hackett and Bell in their individual capacities for damages on his
Fourteenth Amendment claim that they failed to protect him from
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being attacked and injured on June 2, 2009, by inmates they knew
posed a threat to the Plaintiff;
(3) DISMISSES, pursuant to 28 U.S.C. section 1915(b), all
other claims, and DISMISSES Defendant Mollenhauer and the John Doe
defendants;
(4) DIRECTS the Marshals Service to effect service of process
on Defendants Hackett and Bell on the Plaintiff’s behalf, and
DIRECTS the Clerk’s Office to ensure that a copy of this order is
served on them along with the summons and second amended complaint;
and
(5) Pursuant to 42 U.S.C. section 1997e(g)(2), ORDERS that
Defendants Hackett and Bell respond to the second amended complaint
as provided for in the Federal Rules of Civil Procedure.
DATED: June 17, 2011

/S/RUDY LOZANO, Judge
United States District Court

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