Varcadipane v. Neal et al
Filing
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OPINION AND ORDER: The court GRANTS Leonard Varcadipane leave to proceed against Sergeant Buckman and Sergeant Cannaberry their individual capacities for compensatory damages for using excessive force against him on April 21, 2019, in violation of th e Eighth Amendment; GRANTS Leonard Varcadipane leave to proceed against Sergeant Buckman and Sergeant Cannaberry their individual capacities for compensatory damages for denying him medical treatment for two days after they used excessive force again st him on April 21, 2019, in violation of the Eighth Amendment; DISMISSES all other claims; DISMISSES Ron Neal; DIRECTS the clerk and the United States Marshals Service to issue and serve process on Sergeant Buckman and Sergeant Cannaberry at the Ind iana Department of Correction with a copy of this order and the amended complaint 4 as required by 28 U.S.C. § 1915(d); ORDERS the Indiana Department of Correction to provide the United States Marshal Service with the full name, date of birth, social security number, last employment date, work location, and last known home address of any defendant that does not waive service, if they have such information; and ORDERS, pursuant to 42 U.S.C. §1997e(g)(2), Sergeant Buckman and Sergeant Cannaberry to respond, as provided for in the Federal Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the claims for which the plaintiff has been granted leave to proceed in this screening order. Signed by Judge Damon R Leichty on 11/12/2020. (bas)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
LEONARD VARCADIPANE,
Plaintiff,
v.
CAUSE NO. 3:20-CV-185-DRL-MGG
BUCKMAN and CANNABERRY
Defendants.
OPINION & ORDER
Leonard Varcadipane, a prisoner without a lawyer, filed a complaint alleging two
correctional officers used excessive force against him at the Indiana State Prison on April
21, 2019. ECF 4. “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) (quotation
marks and citations omitted). Under 28 U.S.C. § 1915A, the court still must review the
merits of 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 an
immune defendant.
Mr. Varcadipane alleges that while handcuffed and not resisting, Sergeant
Buckman held him as Sergeant Cannaberry punched him several times in the face and
jaw. Then Sergeant Buckman pulled on his cuffs and injured his left hand/wrist. Finally,
they threw him down the stairs. The “core requirement” for an excessive force claim is
that the defendant “used force not in a good-faith effort to maintain or restore discipline,
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but maliciously and sadistically to cause harm.” Hendrickson v. Cooper , 589 F.3d 887, 890
(7th Cir. 2009) (internal citation omitted). “[T]he question whether the measure taken
inflicted unnecessary and wanton pain and suffering ultimately turns on whether force
was applied in a good faith effort to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.” Whitley v. Albers , 475 U.S. 312, 320-21
(1986) (quotation marks and citation omitted). Here, the complaint plausibly alleges these
officers used excessive force in violation of the Eighth Amendment.
Mr. Varcadipane alleges Sergeant Buckman and Sergeant Cannaberry then denied
him medical treatment for two days. In medical cases, the Eighth Amendment test is
expressed in terms of whether the defendant was deliberately indifferent to the plaintiff’s
serious medical need. Estelle v. Gamble, 429 U.S. 97 (1976). A medical need is “serious” if
it is “one that has been diagnosed by a physician as mandating treatment or one that is
so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). Though it is unclear how they
prevented other employees at the prison from having access to him for two days, he will
be granted leave to proceed on a claim for a denial of medical treatment.
Finally, Mr. Varcadipane names Warden Ron Neal as a defendant. However, the
complaint does not mention Warden Neal in the body of the complaint. There is no
general respondeat superior liability under 42 U.S.C. § 1983. “Only persons who cause or
participate in the violations are responsible.” George v. Smith, 507 F.3d 605, 609 (7th Cir.
2007). “[P]ublic employees are responsible for their own misdeeds but not for anyone
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else’s.” Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009). Therefore, Warden Neal must
be dismissed.
For these reasons, the court:
(1) GRANTS Leonard Varcadipane leave to proceed against Sergeant Buckman
and Sergeant Cannaberry their individual capacities for compensatory damages for using
excessive force against him on April 21, 2019, in violation of the Eighth Amendment;
(2) GRANTS Leonard Varcadipane leave to proceed against Sergeant Buckman
and Sergeant Cannaberry their individual capacities for compensatory damages for
denying him medical treatment for two days after they used excessive force against him
on April 21, 2019, in violation of the Eighth Amendment;
(3) DISMISSES all other claims;
(4) DISMISSES Ron Neal;
(5) DIRECTS the clerk and the United States Marshals Service to issue and serve
process on Sergeant Buckman and Sergeant Cannaberry at the Indiana Department of
Correction with a copy of this order and the amended complaint (ECF 4) as required by
28 U.S.C. § 1915(d);
(6) ORDERS the Indiana Department of Correction to provide the United States
Marshal Service with the full name, date of birth, social security number, last
employment date, work location, and last known home address of any defendant that
does not waive service, if they have such information; and
(7) ORDERS, pursuant to 42 U.S.C. §1997e(g)(2), Sergeant Buckman and Sergeant
Cannaberry to respond, as provided for in the Federal Rules of Civil Procedure and N.D.
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Ind. L.R. 10-1(b), only to the claims for which the plaintiff has been granted leave to
proceed in this screening order.
SO ORDERED.
November 12, 2020
s/ Damon R. Leichty
Judge, United States District Court
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