Merriweather v. Cissenero et al

Filing 10

OPINION AND ORDER the court GRANTS William Dean Merriweather, Jr., leave to proceed against Sherri Cissenero in her individual capacity for compensatory and punitive damages for sexually assaulting him in or about November 2014; GRANTS plaintiff leav e to proceed against Mark Sevier, Superintendent of Westville Correctional Facility in his individual capacity for compensatory and punitive damages for being deliberately indifferent to Sherri Cissenero sexually assaulting him in or about November 2 014; DISMISSES all other claims; DISMISSES the Indiana Department of Corrections Commissioner; DIRECTS the clerk and the United States Marshals Service to issue and serve process on Sherri Cissenero and Mark Sevier with a copy of this order and the complaint; ORDERS that Sherri Cissenero and Mark Sevier respond only to the claims for which the pro se plaintiff has been granted leave to proceed in this screening order. Signed by Judge Robert L Miller, Jr on 2/6/2017. (lpw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
WILLIAM DEAN MERRIWEATHER, JR.,
Plaintiff,
v.
SHERRI CISSENERO, et al.,
Defendants.

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CAUSE NO. 3:16-CV-780 RLM

OPINION AND ORDER
William Dean Merriweather, Jr., a pro se prisoner, filed a complaint
pursuant to 42 U.S.C. § 1983 alleging that Officer Sherri Cissenero sexually
assaulted him on multiple occasions around Thanksgiving 2014 at the Westville
Correctional Facility. “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). 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. 28 U.S.C. § 1915A. “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).
Mr. Merriweather is an inmate at the Porter County Jail. Though the details
are a bit vague, Mr. Merriweather alleges that around Thanksgiving 2014, while

he was housed at Westville, Officer Cissenero raped him on numerous occasions
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 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 Mr. Merriweather has provided are vague, giving
him the benefit of the inferences to which he is entitled at the pleading stage of
this proceeding, he has stated a claim against Officer Cissenero for sexually
assaulting him in or around November 2014.
Mr. Merriweather also alleges that he complained about the sexual assaults
to the Superintendent of Westville1, but nothing was done to ameliorate the
problem and the sexual assaults continued.

1

The complaint names the “Head of Westville Correctional Facility,” which the court
presumes is Mark Sevier, the Superintendent of that facility. (See DE 1, 9.)

2

The doctrine of respondeat superior cannot be used to hold
a supervisor liable for conduct of a subordinate that violates
a plaintiff’s constitutional rights. Supervisory liability will be
found, however, if the supervisor, with knowledge of the
subordinate’s conduct, approves of the conduct and the
basis for it. That is, to be liable for the conduct of
subordinates, a supervisor must be personally involved in
that conduct. Supervisors who are merely negligent in failing
to detect and prevent subordinates’ misconduct are not
liable. The supervisors must know about the conduct and
facilitate it, approve it, condone it, or turn a blind eye for fear
of what they might see. They must in other words act either
knowingly or with deliberate, reckless indifference.
Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001) (citations and
internal

quotation

marks

omitted).

Mr.

Merriweather

alleges

that

the

Superintendent had direct personal knowledge of him being sexually assaulted
and disregarded it, or otherwise turned a blind eye. Giving Mr. Merriweather the
inferences to which he is entitled, he has alleged enough to proceed on a claim for
deliberate indifference against the Superintendent.
Finally, Mr. Merriweather brings suit against the Indiana Department of
Corrections Commissioner. While Mr. Merriweather must be assumed — at this
stage of the proceedings — to have personally informed the Superintendent at
Westville of the ongoing assaults by Officer Cissenero, Mr. Merriweather only
claims that the Commissioner failed to take action after he reported the assaults
“on the kiosk & with the PREA . . ..”
Public officials do not have a free-floating obligation to put things to
rights. . . . [The] view that everyone who knows about a prisoner’s
problem must pay damages implies that he could write letters to the
Governor of Wisconsin and 999 other public officials, demand that
every one of those 1,000 officials drop everything he or she is doing
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in order to investigate a single prisoner’s claims, and then collect
damages from all 1,000 recipients if the letter-writing campaign does
not lead to better medical care. That can’t be right.
Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). In other words, simply
receiving notice that Merriweather filed a complaint doesn’t make the
Commissioner liable for an Eighth Amendment violation committed by other
prison personnel. Mr. Merriweather doesn’t allege, nor is there a plausible basis
for inferring, that the Commissioner was personally involved in these events, that
he had actual notice of the harm, or that he otherwise personally failed to protect
Mr. Merriweather from harm at the hands of Officer Cissenero. Consequently, the
complaint states no plausible claim against the Indiana Department of Corrections
Commissioner.
For the foregoing reasons, the court:
(1) GRANTS William Dean Merriweather, Jr., leave to proceed against
Sherri Cissenero in her individual capacity for compensatory and punitive
damages for sexually assaulting him in or about November 2014, in
violation of the Eighth Amendment;
(2) GRANTS William Dean Merriweather, Jr., leave to proceed against
the Mark Sevier, Superintendent of Westville Correctional Facility, in his
individual capacity for compensatory and punitive damages for being
deliberately indifferent to Sherri Cissenero sexually assaulting him in or
about November 2014, in violation of the Eighth Amendment;
(3) DISMISSES all other claims;
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(4) DISMISSES the Indiana Department of Corrections Commissioner;
(5) DIRECTS the clerk and the United States Marshals Service to
issue and serve process on Sherri Cissenero and Mark Sevier with a copy
of this order and the complaint as required by 28 U.S.C. § 1915(d); and
(6) ORDERS that Sherri Cissenero and Mark Sevier respond, as
provided for in the FEDERAL RULES

OF

CIVIL PROCEDURE and N.D. IND. L.R.

10.1, only to the claims for which the pro se plaintiff has been granted leave
to proceed in this screening order.
SO ORDERED.
ENTERED: February

6 , 2017
/s/ Robert L. Miller, Jr.
Judge,
United States District Court

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