Gee v. Indiana Department Of Correction et al

Filing 5

OPINION AND ORDER. Plaintiff Nykaza Gee GRANTED leave to proceed against Defendant Sergeant Ken Young in his individual capacity and as outlined in Order. Plaintiff Nykaza Gee GRANTED leave to proceed against Officer Eric Parrish in his individual ca pacity and as outlined in Order. All other claims are DISMISSED. Indiana Department of Corrections and the Unnamed Inmates are DISMISSED. Clerk DIRECTED to transmit the Summons and USM-285 forms for Defendants Sergeant Ken Young and Officer Eric Parr ish to the United States Marshal's Service along with a copy of the Complaint and this Opinion and Order. United States Marshal's Service DIRECTED to effect service of process on Defendants Sergeant Ken Young and Officer Eric Parrish. Defendants Sergeant Ken Young and Officer Eric Parrish DIRECTED to respond as outlined in Order. Signed by Senior Judge James T Moody on 1/26/16. (cc: Nykaza Gee; USMS). (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
NYKAZA GEE,
Plaintiff,
v.
INDIANA DEPARTMENT OF
CORRECTIONS, et al.
Defendants.

)
)
)
)
)
)
)
)
)
)

CAUSE NO. 3:15-CV-452 JM

OPINION and ORDER
Nykaza Gee, a pro se prisoner, filed a complaint (DE # 1) pursuant to 42 U.S.C.
§ 1983 alleging that he was sexually assaulted by Officer Eric Parrish, Sergeant Ken
Young and numerous other unidentified inmates on November 10, 2014, at the Indiana
State Prison. “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).
Nevertheless, pursuant to 28 U.S.C. § 1915A, this court must 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. “In order to state a claim
under [42 U.S.C.] § 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).

-1-

While the details are a bit confusing, Gee, an inmate at the Indiana State Prison,
does allege that on November 10, 2014, Sergeant Young raped him in cell B-420 North.
He further alleges that Sergeant Young left Gee in the cell naked and shackled to a bed
alone with Officer Parrish, and that Officer Parrish then proceeded to masturbate in
Gee’s presence. According to Gee, at some point, Officer Parrish got into a physical
altercation with Gee and several offenders assisted Officer Parrish in subduing Gee.
While Gee was being held down by other offenders, Officer Parrish sexually assaulted
him by ramming his finger into Gee’s rectum. Gee alleges that Officer Parrish then
passed out gloves to between fifteen (15) and (25) unidentified inmates and allowed
them to sexually abuse Gee by inserting their fingers into Gee’s rectum. Gee alleges that
Sergeant Ken Young and Officer Eric Parrish engaged in this behavior to obtain sexual
arousal or gratification.
“An unwanted touching of a person’s private parts, intended to humiliate the
victim or gratify the assailant’s sexual desires, can violate a prisoner’s constitutional
rights whether or not the ‘force’ exerted by the assailant is significant.” Washington v.
Hively, 695 F.3d 641, 643 (7th Cir. 2012). In Washington the plaintiff alleged that “while
patting him down the guard spent five to seven seconds gratuitously fondling the
plaintiff’s testicles and penis through the plaintiff’s clothing and then while strip
searching him fondled his nude testicles for two or three seconds.” Id. at 642. The court
explained this stated a claim because, “[w]e don’t see how the defendant’s conduct if

-2-

correctly described by the plaintiff could be thought a proper incident of a pat down or
search . . ..” Id. at 644.
Though many of the details Gee has provided are vague, giving Gee the benefit
of the inferences to which he is entitled at the pleading stage of this proceeding, he has
stated a claim against Sergeant Ken Young and Officer Eric Parrish for sexually
assaulting him on November 10, 2014.
Next, Gee sues Officer Parrish for failing to protect him against being sexually
assaulted by other inmates. Under the Eighth Amendment, “prison officials have a
duty to protect prisoners from violence at the hands of other prisoners.” Farmer v.
Brennan, 511 U.S. 825, 833 (1994) (citations and internal punctuation omitted). However,
“[p]risons are dangerous places. Housing the most aggressive among us, they place
violent people in close quarters.” McGill v. Duckworth, 944 F.2d 344, 345 (7th Cir. 1991).
Therefore, 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). 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, 511
U.S. at 837. Here, Gee has alleges that Officer Parrish condoned the inmates’ attack on
him. That is enough to proceed at this stage.
Next, Gee has brought suit for money damages against the Indiana Department
of Corrections alleging a violation of his Eighth Amendment rights. However, the IDOC

-3-

is not a proper defendant here. “[T]he Eleventh Amendment prohibits a suit in federal
court in which the State or one of its agencies or departments is named as the
defendant.” Moore v. State of Indiana, 999 F.2d 1125, 1128 (7th Cir. 1993). Since the IDOC
is a state agency, it will be dismissed.
Finally, as a practical matter, Gee’s case cannot proceed against any of the
unnamed inmates. See Wudtke v. Davel, 128 F.3d 1057, 1060 (7th Cir. 1997) (“[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.”).
For the foregoing reasons, the court:
(1) GRANTS Nykaza Gee leave to proceed against Sergeant Ken Young in his
individual capacity for compensatory and punitive damages for sexually assaulting him
on November 10, 2014, in violation of the Eighth Amendment;
(2) GRANTS Nykaza Gee leave to proceed against Officer Eric Parrish in his
individual capacity for compensatory and punitive damages for sexually assaulting him
on November 10, 2014, in violation of the Eighth Amendment;
(3) GRANTS Nykaza Gee leave to proceed against Officer Eric Parrish in his
individual capacity for compensatory and punitive damages for allowing inmates to
sexually assault him on November 10, 2014, in violation of the Eighth Amendment;
(4) DISMISSES all other claims;

-4-

(5) DISMISSES the Indiana Department of Corrections and the unnamed
inmates;
(6) DIRECTS the clerk to transmit the summons and USM-285 forms for
Sergeant Ken Young and Officer Eric Parrish to the United States Marshals Service
along with a copy of the complaint (DE # 1) and this order;
(7) DIRECTS the United States Marshals Service, pursuant to 28 U.S.C. § 1915(d),
to effect service of process on Sergeant Ken Young and Officer Eric Parrish; and
(8) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Sergeant Ken Young and
Officer Eric Parrish 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.
SO ORDERED.
Date: January 26, 2016
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

-5-