Lowder v. Neal et al
OPINION AND ORDER: The Court DENIES the motion for a preliminary injunction ECF 1 and GRANTS Curt Lowder until 11/4/19 to file a complaint and to resolve his filing fee status. If Mr. Lowder doesnt respond by this deadline, this case will be dismissed without further notice. Signed by Judge Robert L Miller, Jr on 10/9/19. (nal)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CAUSE NO.: 3:19-CV-551-RLM-MGG
WARDEN NEAL, et al.,
OPINION AND ORDER
Curt Lowder, a prisoner without a lawyer, filed a motion for a preliminary
injunction seeking protective custody. The purpose of preliminary injunctive
relief is to minimize the hardship to the parties pending the ultimate resolution
of the lawsuit.” Platinum Home Mortg. Corp. v. Platinum Fin. Group, Inc., 149
F.3d 722, 726 (7th Cir.1998). “In order to obtain a preliminary injunction, the
moving party must show that: (1) they are reasonably likely to succeed on the
merits; (2) no adequate remedy at law exists; (3) they will suffer irreparable harm
which, absent injunctive relief, outweighs the irreparable harm the respondent
will suffer if the injunction is granted; and (4) the injunction will not harm the
public interest.” Joelner v. Village of Washington Park, Illinois, 378 F.3d 613,
619 (7th Cir. 2004).
Mr. Lowder alleges that, in April 2019, he lived in B cellhouse and gave
Lieutenant Wilson a detailed letter asking for protective custody based on the
threat posed by other inmates in the cellhouse. Lieutenant Wilson moved Mr.
Lowder to another cell on the first floor and secured him in the cell. He told Mr.
Lowder that he would remain in that cell until the protective custody paperwork
could be processed. Mr. Lowder responded that he still felt vulnerable and unsafe
from the other inmates in the cellhouse. Mr. Lowder withdrew his request for
protective custody the following morning and was released from the cell. In June
2019, Mr. Lowder again requested protective custody but again withdrew it after
he was told that he would need to be placed in secured cell on the first floor.
Mr. Lowder says that on June 14, 2019, correctional staff found him with
a weapon, which he had obtained because he believed he needed for self-defense.
He was moved to D cellhouse. On June 30, inmates from D cellhouse, who had
been in contact with the inmates from B cellhouse, poisoned and drugged Mr.
Lowder. After threatening self-harm, Mr. Lowder was placed in a suicide watch
cell in D cellhouse. Shortly thereafter, Mr. Lowder began experiencing a burning
sensation, which he believed was pepper spray or chemical burns. He later saw
an inmate sprinkling dust into a fan blowing in Mr. Lowder’s cell. Mr. Lowder
spit on a correctional officer and was moved to a maximum security cell. On July
13, Mr. Lowder was moved back to a cell in D cellhouse, where he remains in
danger from attacks by other inmates. He seeks placement in protective custody.
Warden Neal responded with a declaration stating that inmates request
who request protective custody are placed in a cell near the officer’s station in
the cellhouse pending a decision from the unit team manager. On April 23, 2019,
Mr. Lowder requested protective custody but withdrew the request before a
decision had been reached. On June 14, 2019, Mr. Lowder was sent to restrictive
housing after he was found with a shank in his pocket. In July 2019, Investigator
Rodriguez investigated Mr. Lowder’s claims of other inmates targeting him, but
she could find nothing to substantiate these claims.
According to Warden Neal’s declaration, inmates in restrictive housing are
handcuffed and escorted whenever they leave their cells. Mr. now currently has
his own cell, showers alone, and has recreation time alone in a recreational cage.
Correctional staff don’t let Mr. Lowder be in the presence of other inmates unless
they are also handcuffed and escorted by correctional staff. Mr. Lowder has been
disciplined for physical resisting staff and battery on staff since his assignment
to restrictive housing, so he will remain in restrictive housing until at least
December 14, 2019, when correctional staff will review his housing assignment.
Given the nature of his disciplinary history, he will likely remain in restrictive
In reply, Mr. Lowder alleges that, in his housing unit, he is frequently in
the presence of unsupervised and unshackled inmates, including those from
other housing units who distribute meals, collect laundry, or clean. He adds that
inmates from his housing unit can pick the locks for their cells. Though he can’t
identify which inmates are causing the chemical burns, he continues to
experience them, and they seem to coincide with the times when inmates from
other housing units are present.
After reviewing Mr. Lowder’s reply, the court deferred a ruling on the
motion for a preliminary injunction and granted the Warden a chance to address
the issues raised in the reply. The court asked the Warden to explain any
investigation that took place with respect to Mr. Lowder’s reports of being
targeted or his requests for protection, whether other inmates have unsupervised
access to Mr. Lowder’s cell, and how medical staff have responded to Mr.
Lowder’s reports of chemical burns.
The Warden filed a supplemental affidavit. He concedes that inmates who
serve as porters have some access to Mr. Lowder, but those these inmates are
screened and supervised, which significantly reduces the risk of them attacking
Mr. Lowder. Notwithstanding that some inmates have access to Mr. Lowder even
investigation into Mr. Lowder’s allegations but has been unable to find any
evidence to support them. Additionally, though Mr. Lowder seeks housing in the
protective custody unit, inmates in that unit have more physical freedom and
opportunity to interact with other inmates than those in disciplinary segregation.
The Warden explains that he directed Investigator Rodrigues to investigate
the requests for protective custody. On July 12, 2019, she interviewed Mr.
Lowder, who told her that he thinks other inmates are targeting him due to his
involvement in a bar fight with a members of a biker gang fifteen years earlier.
He told her that he claimed to be suicidal so that he could leave disciplinary
housing. He told her that he believed that his smock had lingering pepper spray
on it until he saw an inmate sprinkling burning chemical powder on him. He
also told her that other inmate employees sprayed him with chemicals in holes
that they had drilled into his cell wall and that other inmates in the housing unit
had yelled threats of violence at him from their cells. Investigator Rodriguez
couldn’t corroborate any of these reports or find any indication that Mr. Lowder
had ever been attacked at the Indiana State Prison.
Mr. Lowder gave Investigator Rodrigues the names or aliases of those he
believed were targeting him. Investigator Rodriguez couldn’t confirm the identity
of many of these individuals and discovered that another individual had been
released. She further discovered that two of the inmates resided in other housing
units but no indication that Mr. Lowder had previously identified them as threats
or that they had ever harmed him. She also consulted with law enforcement
agencies that specialized in biker gangs and couldn’t verify that any of the named
individuals were associated with biker gangs.
On August 9, 2019, Investigator Rodrigues told Mr. Lowder about the
results of her investigation. He told her that his reports might have been
inaccurate due to his use of methamphetamine. Mr. Lowder underwent a
urinalysis, which confirmed that he had obtained and used methamphetamine.
On September 25, another investigator tried to interview Mr. Lowder, but he
refused to cooperate.
The Warden also consulted with medical staff during the course of his
investigation. On July 22, 2019, Mr. Lowder told a nurse that he had used
methamphetamine and that he had an irregular heartbeat, difficulty breathing,
and stinging sensations all over his body. The nurse saw served no signs of skin
irritation, shortness of breath, or heart complications. He also sought medical
attention on other occasions for methamphetamine use, acid reflux, and hip
pain, but did not complain of skin irritation. In July 2018, Mr. Lowder started
receiving regular treatment from mental health staff, and his reports to them
about his need for protection has substantially mirrored his reports to
Investigator Rodriguez. He has received a diagnosis of anxiety disorder and
prescriptions for medication.
To obtain a motion for a preliminary injunction, Mr. Lowder must
demonstrate a reasonable likelihood of success on the merits. 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).
“[I]n order to state a section 1983 claim against prison officials for failure to
protect, [a plaintiff] must establish: (1) that [she] 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
Seventh Circuit 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 correctional staff has undertaken substantial efforts to investigate Mr.
Lowder’s requests for protection. According to the record, an investigator was
assigned to look into Mr. Lowder’s reports, and, when that investigator couldn’t
corroborate these reports after a reasonable investigation, Mr. Lowder conceded
that his reports may have the result of methamphetamine use, and he refused
to cooperate with further attempts to investigate. The record further indicates
that medical staff found no indication of skin irritation but responded to his
reports by treating him for substance abuse and anxiety disorder. It also
indicates that the correctional staff have housed Mr. Lowder in a disciplinary
segregation unit, which allows only minimal contact with other inmates. In sum,
the record wouldn’t allow a finding that correctional staff are acting with
deliberate indifference to Mr. Lowder’s requests for protection. The court can’t
conclude that Mr. Lowder is reasonably likely to succeed on the merits of his
Mr. Lowder must also show that he will suffer irreparable harm unless he
obtains injunctive relief. While Mr. Lowder may believe that he remains in danger
from other inmates even in restrictive housing, the record contains no evidence
beyond Mr. Lowder’s reports regarding chemical powder, holes drilled into his
cell wall, and threats or incident of violence, despite internal investigations and
numerous visits to medical unit. Mr. Lowder’s drug use, his apparent desire to
leave the disciplinary unit, and his recent refusal to cooperate with an
investigator further undermine the credibility of these reports. Nor is it clear that
Mr. Lowder would be safer in protective custody given the freedom of movement
and privileges afforded to the inmates in that unit. As a result, the court cannot
find that Mr. Lowder will suffer irreparable harm absent injunctive relief.
Additionally, with respect to the competing and public interests,
unnecessary intrusions into the management of prisons are generally disfavored.
See 18 U.S.C. § 3626(a) (prison-related injunctions must be necessary to remedy
the violation and narrowly tailored); Westefer v. Neal, 682 F.3d 679, 683 (7th Cir.
2012) (“Prison officials have broad administrative and discretionary authority
over the institutions they manage.”). In conclusion, the court has considered the
relevant factors and finds that Mr. Lowder is not entitled to a preliminary
As a final matter, Mr. Lowder hasn’t filed a complaint and hasn’t resolved
his filing fee status. Now that the motion for a preliminary injunction has been
resolved, Mr. Lowder must address these deficiencies promptly if he intends to
proceed with this case. To file a complaint, he should obtain the court’s approved
form from the prison law library, and he must put the case number of this case
on it, which is on the first page of this order. In the complaint, he must describe
his interactions with each defendant in detail, including names, dates, location,
and explain how each defendant was responsible for harming him. Further, Mr.
Lowder must address his filing fee status by either immediately paying the filing
fee in full or by filing a motion for leave to proceed in forma pauperis. If he
chooses to file a motion for leave to proceed in forma pauperis, he should obtain
the court’s form motion and file it with his prison account summary for the last
six months attached.
For these reasons, the court:
(1) DENIES the motion for a preliminary injunction (ECF 1); and
(2) GRANTS Curt Lowder until November 4, 2019, to file a complaint and
to resolve his filing fee status.
If Mr. Lowder doesn’t respond by this deadline, this case will be dismissed
without further notice.
SO ORDERED on October 9, 2019
s/ Robert L. Miller, Jr.
UNITED STATES DISTRICT COURT
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