Tolliver v. Elkhart County Sheriff Dept et al

Filing 8

OPINION AND ORDER - Plaintiff Lonnie Tolliver is GRANTED until October 30, 2017, to file an amended complaint. Tolliver is CAUTIONED that if he does not respond by that deadline, this case will be dismissed without further notice pursuant to 28 U.S.C. § 1915A because it fails to state a claim for which relief can be granted. Signed by Judge Philip P Simon on 10/4/17. (Copy mailed to pro se party)(mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
LONNIE TOLLIVER,
Plaintiff,
vs.
ELKHART COUNTY SHERIFF
DEPT., et. al.,
Defendants.

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CAUSE NO. 3:17CV609-PPS

OPINION AND ORDER
Lonnie Tolliver, a pro se prisoner, filed a complaint alleging that unidentified
staff at the Elkhart County Correctional Complex mistreated him when he suffered a
seizure. ECF 1. Pursuant to 28 U.S.C. § 1915A, I 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. Under federal pleadings standards, the 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 [him] that might be redressed by the law.” Swanson v.
Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original). Instead, the
plaintiff must provide sufficient factual matter to state a claim that is plausible on its
face. Ray v. City of Chicago, 629 F.3d 660, 662-63 (7th Cir. 2011).
Tolliver claims that on July 9, 2016, he went into a seizure while he was housed at
the Elkhart County Correctional Complex. His cellmate notified staff that “something was

wrong” with Tolliver. In response, unidentified staff locked him in a restraint chair and
placed a spit mask on his face. However, staff members soon realized that he needed
medical attention. Tolliver alleges, “[b]y the time E.C.C.C. staff realized what was
happening it had got so far out of hand 911 had to dispatch an[] ambulance to the Elkhart
County Correctional Complex to transport me to the Elkhart County General Hospital.“
ECF 1 at 3, 4. After he returned from the hospital, Tolliver filed a grievance, which Captain
Perry and Lieutenant Edwards denied. Tolliver sues the Elkhart County Sheriff
Department, Sheriff Brad Rogers, Captain Perry, Lieutenant Edwards and the jail’s medical
provider, Correctional Care Service for money damages.
Tolliver complains that he was mistreated by unidentified jail staff when he
suffered a seizure. In medical cases, the Constitution is violated only when a defendant
was deliberately indifferent to an inmate’s serious medical needs. Gutierrez v. Peters, 111
F.3d 1364, 1369 (7th Cir. 1997). “[C]onduct is deliberately indifferent when the official
has acted in an intentional or criminally reckless manner, i.e., the defendant must have
known that the plaintiff was at serious risk of being harmed and decided not to do
anything to prevent that harm from occurring even though he could have easily done
so.” Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (quotation marks, brackets, and
citation omitted). “Negligence on the part of an official does not violate the
Constitution, and it is not enough that he or she should have known of a risk. Instead,
deliberate indifference requires evidence that an official actually knew of a substantial
risk of serious harm and consciously disregarded it nonetheless.” Pierson v. Hartley, 391
F.3d 898, 902 (7th Cir. 2004) (citations omitted). It is not enough to show that a

defendant merely failed to act reasonably. Gibbs v. Franklin, 49 F.3d 1206, 1208 (7th Cir.
1995). Even incompetence does not state a claim of deliberate indifference. Walker v.
Peters, 233 F.3d 494 (7th Cir. 2000).
Here, Tolliver has not adequately alleged a constitutional claim because he has failed
to allege facts showing deliberate indifference. At best, he alleges a claim of negligence.
His allegations establish that Elkhart County Correctional staff initially placed him in a
restraint chair until “they realized what was happening.” ECF 1 at 3, 4. Once they realized
he needed medical attention, they promptly called for medical attention. Id. Although
Tolliver complains that staff acted negligently, this is insufficient to demonstrate deliberate
indifference. Based on the complaint, Tolliver has fallen short of alleging the type of
conduct that would rise to the level of a constitutional violation.
Further, even if Tolliver would have alleged that he suffered a constitutional
violation, which he has not, he has also not named any responsible defendant. He does not
identify which Elkhart County Correctional staff members placed him in a restraint chair
while he was suffering a seizure. Instead, he names five other defendants. He sues
Correctional Care Service, but he has not alleged that its employees denied him medical
treatment based on a corporate policy or practice. See Hahn v. Walsh, 762 F.3d 617, 640 (7th
Cir. 2014). He sues the Elkhart County Sheriff’s Department, but the Sheriff’s Department
cannot be held liable simply because it employed the officers involved in this incident.
Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001). He sues Sheriff Rogers, but
he is merely alleged to be a supervisor and there is no general respondeat superior liability
under 42 U.S.C. § 1983. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). And, he sues

Captain Perry and Lieutenant Edwards for denying his grievances, but the fact that a
grievance official denies a prisoner’s grievance does not state a constitutional claim. Owens
v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011); See also George, 507 F.3d. at 609 (“Only persons
who cause or participate in . . . [Constitutional] . . . violations are responsible. Ruling
against a prisoner on an administrative complaint does not cause or contribute to the
violation”) (citations omitted). Therefore the complaint does not state a claim against these
five defendants.
Though the current complaint fails to state a claim, Tolliver may file an amended
complaint if he believes that he can plausibly do so. See Luevano v. Wal-Mart, 722 F.3d
1014 (7th Cir. 2013). If he decides to file an amended complaint, he should get a blank
copy of this court’s complaint form from the law library and write the cause number for
this case in the caption on the first page. In the amended complaint, Tolliver should be
sure to address the deficiencies noted in this order. He should name the individuals
responsible for his harm and explain in his own words what happened, when it
happened, and where it happened, providing as much detail as possible.
ACCORDINGLY:
Plaintiff Lonnie Tolliver is GRANTED until October 30, 2017, to file an amended
complaint. Tolliver is CAUTIONED that if he does not respond by that deadline, this
case will be dismissed without further notice pursuant to 28 U.S.C. § 1915A because it
fails to state a claim for which relief can be granted.
ENTERED: October 4, 2017

/s/ Philip P. Simon
Judge
United States District Court