Turner v. Indiana Department of Corrections et al

Filing 6

OPINION AND ORDER; GRANTING pltf leave to proceed against Pam Bane; DISMISSING all other claims; DISMISSING defts Hough and Indiana Department of Corrections; DIRECTS Clerk to issue summons to Pam Bane; DIRECTS USM to effect service of process. Signed by Judge Joseph S Van Bokkelen on 4/11/13. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
KEVIN SCOTT TURNER,
Plaintiff,
Civil Action No. 3:13-CV-198-JVB
v.
INDIANA DEPARTMENT OF CORRECTIONS
et al.,
Defendants.
OPINION AND ORDER
Kevin Scott Turner, a prisoner proceeding pro se, has filed the Complaint in this case
pursuant to 42 U.S.C. § 1983, which the Court now screens under 28 U.S.C. § 1915A.
“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) (citation and internal quotation marks
omitted). The screening obligation requires the Court to review the complaint and dismiss it if
the action is frivolous or malicious, fails to state a claim, or seeks monetary relief against a
defendant who is immune from such relief. 28 U.S.C. § 1915A. “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).
Turner’s Complaint names three defendants: the Indiana Department of Corrections, Unit
Team Manager Pam Bane, and Internal Affairs Officer Hough. The Eleventh Amendment
precludes lawsuits in federal court against a state agency for money damages unless Congress
has abrogated the State’s immunity from suit or the state has consented to suit. MCI

Telecommc’ns Corp. v. Ill. Commerce Comm’n, 183 F.3d 558, 563 (7th Cir. 1999). Indiana has
not consented to this suit, and Congress did not abrogate its immunity through the enactment of
Section 1983. See Joseph v. Bd. of Regents of Univ. of Wis. Sys., 432 F.3d 746, 748 (7th Cir.
2005). Therefore the Indiana Department of Corrections must be dismissed.
Turner alleges that Unit Team Manager Pam Bane ignored his request for protective
custody on December 5, 2012, when he was transferred within the prison from A Cellhouse to B
Cellhouse. Turner claims this resulted in a violation of his constitutional rights when he was
attacked by a masked inmate with an unidentified weapon on December 25, 2012, in B
cellhouse. When an inmate is attacked by another inmate, the Eighth Amendment is violated if
“deliberate indifference by prison officials effectively condones the attack by allowing it to
happen.” Haley v. Gross, 86 F.3d 630, 640 (7th Cir. 1996). The defendant “must be both aware
of facts from which the inference could be drawn that a substantial risk of serious harm exists,
and he must draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Vague and
generalized fear of future harm based on a past attack is not sufficient to establish liability.
Klebanowski v. Sheahan, 540 F.3d 633, 639–40 (7th Cir. 2008). Mere negligence does not
satisfy the “deliberate indifference” standard. Sellers v. Henman, 41 F.3d 1100, 1102 (7th Cir.
1994).
Turner has attached a copy of his protective-custody request. In it he claims he was being
targeted by members of two gangs, the Vice Lords and the Gangster Disciples. Turner says they
wanted to harm him because he was listed as a witness in two death-penalty cases. He did not
identify anyone in B cellhouse who was a member of either gang. Rather, he claimed they were
housed throughout the prison. He made no mention of whether there were any members of either

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gang in A cellhouse. Though it is not entirely clear this sufficed to put Bane on notice that
Turner was at substantial risk of serious harm, he has, by the pro se standard, stated a plausible
monetary damages claim against her in her individual capacity for failing to protect him from
attack by fellow inmates on December 25, 2012.
Turner also alleges that his mother called Internal Affairs Officer Hough on December
21, 2012, “and expressed her concern about [his] personal safety.” Turner says Hough promised
to come talk to him, but did not. A complaint must contain sufficient factual matter to “state a
claim that is plausible on its face.” Bell Atl. 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 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).
Here, Turner has not plausibly alleged that Officer Hough was deliberately indifferent.
Though his mother expressed a generalized fear about his safety, that is not sufficient to put a
prison official on notice that an actual risk of attack exists. This is so because “[p]risons are

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dangerous places.” McGill v. Duckworth, 944 F.2d 344, 345 (7th Cir. 1991), subsequent changes
in law recognized in Haley v. Gross, 86 F.3d 630 (7th Cir. 1996). “Some level of brutality . . . is
inevitable no matter what the guards do.” McGill, 944 F.2d at 348.
[B]ecause violence is inevitable unless all prisoners are locked in their cells 24 hours
a day and sedated (a “solution” posing constitutional problems of its own) it will
always be possible to say that the guards “should have known” of the risk. Indeed
they should, and do. Applied to a prison, the objective “should have known” formula
of tort law approaches absolute liability, rather a long distance from the Supreme
Court’s standards in Estelle and its offspring.
Id. Therefore, “[t]his lack of specificity falls below the required notice an officer must have for
liability to attach for deliberate indifference.” Klebanowski v. Sheahan, 540 F.3d 633, 640 (7th
Cir. 2008). Thus, Internal Affairs Officer Hough must be dismissed.
For the foregoing reasons, the Court:
(1) GRANTS Kevin Scott Turner leave to proceed against Unit Team Manager Pam
Bane, in her individual capacity, for monetary damages, for failing to protect him from attack by
fellow inmates on December 25, 2012, in violation of the Eighth Amendment;
(2) DISMISSES all other claims;
(3) DISMISSES the Indiana Department of Corrections and Internal Affairs Officer
Hough;
(4) DIRECTS the Clerk to transmit the summons and USM-285 for Unit Team Manager
Pam Bane to the United States Marshals Service along with a copy of the Complaint and this
Order;
(5) DIRECTS the United States Marshals Service, pursuant to 28 U.S.C. § 1915(d), to
effect service of process on Unit Team Manager Pam Bane; and

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(6) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), Unit Team Manager Pam Bane to
respond, as provided for in the Federal Rules of Civil Procedure and Local Rule 10-1(b), only to
the claim for which the plaintiff has been granted leave to proceed in this Screening Order.
SO ORDERED on April 11, 2013.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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