Collins v. Neal et al

Filing 17

OPINION AND ORDER: GRANTING Plaintiff leave to proceed on a claim against Warden Ron Neal and Counselor Roose for money damages for failing to protect him against gang violence from 1/26/2016 to 2/13/2016; DISMISSING Daniel Bodiovich, Charles Whe lan, and the John Doe defendants; DISMISSING all other claims; DIRECTING the clerk and the US Marshals Services to issue and serve process on Warden Ron Neal and Counselor Roose at the Indiana Department of Correction with a copy of this order and the complaint as required by 28 U.S.C. § 1915(d); and (5) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), Warden Ron Neal and Counselor Roose to respond, as provided by the Federal Rules of Civil Procedure and N.D. Ind. L. R. 10.1, only to the claims for which Brian K Collins has been granted leave to proceed in this order. Signed by Judge Robert L Miller, Jr on 4/4/18. (Copy mailed to pro se party, USM)(jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
BRIAN K. COLLINS,
Plaintiff,
v.
RON NEAL, et al.,
Defendants.

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CAUSE NO. 3:17-CV-972-RLM-MGG

OPINION AND ORDER
Brian K. Collins, a prisoner without a lawyer, filed a complaint after other
inmates attacked him 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). 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. Collins alleges that, on January 26, 2016, he transferred to the
Indiana State Prison due to gang-related threats he received at the New Castle
Correctional Facility. He alleges that a gang has targeted him for violence due to
the nature of his conviction and his reputation as a snitch. On January 29, 2016,

Mr. Collins was assigned to a cell house in general population. On February 13,
2016, four inmates, who were also gang members, surrounded Mr. Collins in his
cell and assaulted him, which resulted in a loss of consciousness and broken
teeth. Mr. Collins was reassigned to the protective custody unit three days later.
First, Mr. Collins alleges an Eighth Amendment claim against all
defendants for not providing him with adequate protection. The Eighth
Amendment imposes a duty on prison officials “to take reasonable measures to
guarantee the safety of inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994).
“[P]rison officials have a duty to protect prisoners from violence at the hands of
other prisoners.” Id. at 833. “[I]n order to state a section 1983 claim against
prison officials for failure to protect, [a plaintiff] must establish: (1) that he was
incarcerated under conditions posing a substantial risk of serious harm and (2)
that the defendants acted with deliberate indifference to his health or safety.
Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010). In the context of failure to
protect cases, the court of appeals has equated “substantial risk” to “risks so
great that they are almost certain to materialize if nothing is done.” Brown v.
Budz, 398 F.3d 904, 911 (7th Cir. 2005). In such cases, “a prisoner normally
proves actual knowledge of impending harm by showing that he complained to
prison officials about a specific threat to his safety.” Pope v. Shafer, 86 F.3d 90,
92 (7th Cir. 1996).
The complaint alleges that Officer Nowatzke, head of classification, and
Charles Whelan, head of internal affairs, knew of the gang threats. Mr. Collins
can’t proceed against Officer Nowatzke because he didn’t name Officer Nowatzke

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as a defendant. Mr. Collins can’t proceed against Charles Whelan or Daniel
Bodiovich because the two-year statute of limitations bars the claims against
them. See Behavioral Inst. of Ind., LLC v. Hobart City of Common Council, 406
F.3d 926, 929 (7th Cir. 2005). Mr. Collins also alleges a failure to protect claim
against several unidentified correctional staff members. These unidentified
defendants must be dismissed because “it 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.” Wudtke v. Davel, 128 F.3d 1057, 1060 (7th Cir. 1997) (citations
omitted).
The complaint further alleges that Mr. Collins requested protective custody
from Counselor Roose on January 26, 27, and 28, and that a unit team manager
informed Warden Neal of the gang threats on January 26 and 29. Because Mr.
Collins named Counselor Roose and Warden Neal in his initial complaint, the
relation-back doctrine applies, and the statute of limitations doesn’t bar the
claims against them. See Fed. R. Civ. P. 15(c)(1)(C); King v. One Unknown Federal
Correctional Officer, 201 F.3d 910, 914 (7th Cir. 2000). The complaint plausibly
states a failure to protect claim against Counselor Roose and Warden Neal.
Next, Mr. Collins alleges a claim under the Americans with Disabilities Act
(ADA) against Warden Neal. For ADA claims, a plaintiff must show that: (1) he is
a qualified individual with a disability; (2) he was denied the benefits of the
services, programs, or activities of a public entity or otherwise subjected to
discrimination by such an entity; and (3) the denial or discrimination was by

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reason of his disability. 42 U.S.C. § 12132; Jaros v. Illinois Dep’t of Corr., 684
F.3d 667, 672 (7th Cir. 2012); Love v. Westville Corr. Ctr., 103 F.3d 558, 560
(7th Cir. 1996). Though Mr. Collins alleges that he suffers a severe mental illness,
no allegations suggest that he was denied protection because of this disability.
This claim is dismissed.
For these reasons, the court:
(1) GRANTS Brian K. Collins leave to proceed on a claim against
Warden Ron Neal and Counselor Roose for money damages for failing to
protect him against gang violence from January 26, 2016, to February 13,
2016;
(2) DISMISSES Daniel Bodiovich, Charles Whelan, and the John Doe
defendants;
(3) DISMISSES all other claims;
(4) DIRECTS the clerk and the United States Marshals Services to
issue and serve process on Warden Ron Neal and Counselor Roose at the
Indiana Department of Correction with a copy of this order and the
complaint (ECF 14) as required by 28 U.S.C. § 1915(d); and
(5) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), Warden Ron Neal
and Counselor Roose to respond, as provided by the Federal Rules of Civil
Procedure and N.D. Ind. L. R. 10.1, only to the claims for which Brian K.
Collins has been granted leave to proceed in this order.

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SO ORDERED on April 4, 2018
/s/ Robert L. Miller, Jr.
Judge
United States District Court

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