Gorman v. Lemmon et al

Filing 8

OPINION AND ORDER GRANTING Pla leave to proceed against Andrew Thode in his individual capacity for compensatory and punitive damages as outlined; DISMISSING all other claims; DISMISSING Dfts Bruce Lemmon, Mark Levenhagent, Tim Bean, and David Leonar d; DIRECTING Clerk to transmit summons and USM-285 forms for Dft Andrew Thode to the USMS along with copy of the Complaint and this order; DIRECTING USMS to effect service of process on Andrew Thode. Dft Andrew Thode to respond as outlined. Signed by Judge William C Lee on 8/25/2015. (cc: Pla, USMS with summons, USM 285, and Complaint) (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ANDRE L. GORMAN,

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Plaintiff,
vs.
BRUCE LEMMON, et al.,
Defendants.

CAUSE NO. 3:15-CV-312 WL

OPINION AND ORDER
Andre L. Gorman, a pro se prisoner, filed a complaint under 42 U.S.C. § 1983 (DE 1.)
Pursuant to 28 U.S.C. § 1915A, the court must review a complaint filed by a prisoner and
dismiss it if the action is frivolous or malicious, fails to state a claim for relief, or seeks monetary
relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(a), (b). To survive
dismissal, the complaint must state a claim for relief that is plausible on its face. Bissessur v.
Indiana Univ. Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 603. In other words, “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) (emphasis in original). Nevertheless, a pro
se complaint “must be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).

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Gorman is currently confined at the Westville Correctional Facility (“Westville”). He
alleges that on October 7, 2013, a race riot broke out between white and black inmates at
Westville. After this incident, Superintendent Mark Levenhagen, with the approval from
Commissioner Bruce Lemmon, activated the Custody Supervision Emergency Squad1 to restore
order. The white offenders involved in these altercations were removed from their dorms,
segregated from the rest of the prison population, and placed in the gymnasium and holding cells
throughout the complex. Andrew Thode was a correctional officer at Westville and a member of
the Emergency Squad.
Two days later, on October 9, 2013, Gorman asked Officer Thode if he and other
offenders could enter the dayroom to watch television. Officer Thode denied Gorman’s request
and an argument between the two ensued. Officer Thode placed Gorman in restraints, removed
him from the dorm and took him to Post 2. There were two holding cells at Post 2, one large area
where some of the white offenders from the riot were being housed and a vacant single cell.
Officer Thode uncuffed Gorman and ordered him to enter into a cell. Gorman went into the
vacant cell, but Officer Thode ordered him to go into the area with the white offenders. Gorman
refused, but Officer Thode forced him into that area. Those white offenders assaulted Gorman.
Gorman submitted a grievance about this incident to Timothy Bean. However, Bean did
not process his grievance. Gorman then attempted to complain to Bean’s supervisor, David
Leonard, but Leonard would not speak with him about it.
Gorman has brought suit against Bruce Lemmon, Mark Levenhagen and Andrew Thode
for money damages for failing to protect him from being assaulted. He also brings suit against

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This is apparently a squad comprised of specially trained correctional officers.

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Tim Bean and David Leonard for money damages for denying him the right to be heard through
the grievance process.
To start, Gorman alleges Officer Thode failed to protect him from being attacked by
other inmates on October 9, 2013. When an inmate is attacked by another inmate, the Eighth
Amendment is violated only 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). However,
general requests for help and expressions of fear are insufficient to alert guards to the need for
action. Klebanowski v. Sheahan, 540 F.3d 633, 639–40 (7th Cir. 2008). Moreover, the defendant
“must both be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837
(1994).
It is possible that Officer Thode was not deliberately indifferent because he did not
believe placing Gorman in the area with white offenders would result in an assault on Gorman.
However, the facts as alleged plausibly show that Officer Thode had the facts necessary to
realize that Gorman was in imminent danger and that he deliberately disregarded that risk.
Therefore Gorman will be permitted to proceed against Officer Thode.
As to Levenhagen and Lemmon, Gorman alleges generally that they were aware of the
racial tension in the prison following the race riot. However, knowledge of the general risk of
violence in a correctional facility is insufficient to support a failure to protect claim. Brown v.
Budz, 398 F.3d 904, 913 (7th Cir. 2005). Gorman does not allege, nor can it be plausibly
inferred, that either Levenhagen or Lemmon was personally involved in Gorman’s move to a
different cell, or that Gorman personally advised either of them that he was concerned for his

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safety. Gorman may be trying to hold Levenhagen and Lemmon liable because they supervise
Officer Thode, but there is no general respondeat superior liability under Section 1983. Chavez
v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001). Levenhagen and Lemmon can only be held
liable for their own misconduct, not for an act or omission of another prison employee. See
Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009) (under 42 U.S.C. § 1983 government
actors can be held liable only for their “own misdeeds . . . not for anyone else’s.”).
Although unclear, Gorman may also be trying to claim that Levenhagen and Lemmon did
not do enough to separate members of the different groups. However, high-ranking officials
cannot be held liable for failure to protect based solely on an allegation that the prison’s
classification system was inadequate. Weiss v. Cooley, 230 F.3d 1027, 1033 (7th Cir. 2000). The
relevant standard is deliberate indifference and not negligence. Id. Thus, to state a claim, the
plaintiff must allege that the official failed to implement an adequate classification system “with
the motive of allowing or helping prisoners to injure one another.” Id. Gorman’s general
allegations about Levenhagen and Lemmon fall far short of this standard. Accordingly, they will
be dismissed as defendants.
Finally, Gorman complains about how Timothy Bean and David Leonard handled his
grievances over this incident. Nevertheless, neither of these defendants can not be liable simply
because they participated in addressing or denying Gorman’s grievances. Burks, 555 F.3d at 59596. Prison grievance procedures “do not give rise to a liberty interest protected by the Due
Process Clause.” Grieveson v. Anderson, 538 F.3d 763, 772 (7th Cir. 2008). As a result,
Gorman’s complaints about how these two handled his grievances do not state a constitutional
claim. Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011).

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For the foregoing reasons, the court:
(1) GRANTS Andre L. Gorman leave to proceed against Andrew Thode in his individual
capacity for compensatory and punitive damages for failing to protect him from attack by inmates
on October 9, 2013, in violation of the Eighth Amendment;
(2) DISMISSES all other claims;
(3) DISMISSES Bruce Lemmon, Mark Levenhagen, Tim Bean and David Leonard;
(4) DIRECTS the clerk to transmit the summons and USM-285 forms for Andrew Thode
to the United States Marshals Service along with a copy of the complaint (DE 1) and this order;
(5) DIRECTS the United States Marshals Service, pursuant to 28 U.S.C. § 1915(d), to effect
service of process on Andrew Thode; and
(6) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Andrew Thode respond, as provided
for in the Federal Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the claim for which
the plaintiff has been granted leave to proceed in this screening order.
SO ORDERED.
ENTERED: August 25, 2015
s/William C. Lee
William C. Lee, Judge
United States District Court

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