Gillon v. Richmond et al

Filing 5

OPINION AND ORDER: GRANTING Pltf to and including 1/30/2017 to file an amended complaint; CAUTIONING Pltf that if he does not respond by the deadline this case will be dismissed. Signed by Judge Rudy Lozano on 1/5/17. (jld) (cc: Gillon with form)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
LORENZO GILLON,
Plaintiff,
vs.
STEVE RICHMOND, et al.,
Defendants.

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CAUSE NO. 3:16-CV-699 RL

OPINION AND ORDER
Lorenzo Gillon, 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 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. Courts apply the same standard under
Section 1915A as when deciding a motion under Federal Rule of Civil
Procedure 12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th
Cir. 2006). To survive a motion to dismiss under Rule 12(b)(6), a
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. Furthermore, “[a] document filed
pro se is to be liberally construed, and a pro se complaint,
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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).

To state 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).
Gillon

is

an

inmate

at

the

St.

Joseph

County

Jail

and

complains that during med pass on August 4, 2016, he asked the
medical staff for a Tylenol pill. Soon after Gillon received and
ingested the pill, the nurse came back to his cell and told him
that she mistakenly gave him someone else’s medication. Gillon
alleges that he is now concerned that this may happen again and is
reluctant to use the medical facilities at the jail. He brings suit
for money damages against Assistant Warden and Melinda Fisher based
upon “emotional and psychological distress” as well as “mental
anguish.”
As a threshold matter, Gillon does not identify what either
named defendant did in connection with his claim. This is necessary
as “[a] plaintiff bringing a civil rights action must prove that
the

defendant

personally

participated

in

or

caused

the

unconstitutional actions.” Grieveson v. Anderson, 538 F.3d 763, 776
(7th Cir. 2008). “[P]ublic employees are responsible for their own
misdeeds but not for anyone else’s.” Burks v. Raemisch, 555 F.3d

-2-

592, 596 (7th Cir. 2009). There is no general respondeat superior
liability under 42 U.S.C. § 1983. George v. Smith, 507 F.3d 605,
609

(7th

Cir.

2007).

That

is

to

say,

a

supervisor

is

not

responsible in a federal civil rights lawsuit for the actions or
omissions of his employees. Because there is no indication that
either Assistant Warden Richmond or Melinda Fisher was personally
responsible for giving Gillon the wrong medication, he has not
stated a claim against them.
Nevertheless,

even

if

Gillon

had

named

the

individuals

personally responsible for providing him with the wrong medication,
it

would

still

not

be

plausible

to

find

that

Gillon’s

constitutional rights were violated. From the allegations of the
complaint, it is clear that the unidentified nurse mistakenly gave
Gillon the wrong medication. The nurse’s action could be deemed
negligent under state law. However, negligence does not establish
a constitutional claim since “the Eighth Amendment does not codify
common law torts.” Arnett v. Webster, 658 F.3d 742, 751 (7th Cir.
2011) (citation omitted).
Moreover, Gillon alleges that being given the wrong medication
has caused him to suffer emotional distress. He does not allege
that he has directly suffered any physical injury as a result of
these events. Without actual injury caused by the defendants’
actions or omissions, Gillon can not plausibly state a claim in
federal court. See Walker v. Peters, 233 F.3d 494, 502 (7th Cir.

-3-

2000).
No Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while
in custody without a prior showing of physical injury.
42 U.S.C. § 1997e(e).
As explained, this complaint does not state a claim. Though it
does not appear that Gillon could state a claim even if he filed an
amended complaint, he will nevertheless be permitted to do so. See
Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013).
For the reasons set forth above, the Court:
(1) DIRECTS the clerk to place this cause number on a blank
Prisoner Complaint 42 U.S.C. § 1983 form and sent it to Lorenzo
Gillon;
(2) GRANTS Lorenzo Gillon to and including January 30, 2017,
to file an amended complaint; and
(3) CAUTIONS him that if he does not respond by the deadline,
this case will be dismissed pursuant to 28 U.S.C. § 1915A because
the current complaint does not state a claim for which relief can
be granted.
DATED: January 5, 2017

/s/RUDY LOZANO, Judge
United States District Court

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