Spann v. Indiana State of et al

Filing 10

OPINION AND ORDER GRANTING Plaintiff until 12/16/20 to file an amended complaint if he so wishes. Plaintiff is CAUTIONED that if he does not respond by the deadline, this case will be dismissed under 28 U.S.C. § 1915A, because the current complaint does not state a claim upon which relief can be granted. Signed by Judge Damon R Leichty on 11/16/20. (Copy mailed to pro se party)(mlc)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
RICHARD A. SPANN-EL,
Plaintiff,
v.

CAUSE NO. 3:20-CV-761-DRL-MGG

INDIANA STATE OF, MORGAN,
BENNET, WILLIAM HYATTE, CURTIS
HILL,
Defendants.
OPINION & ORDER
Richard A. Spann-El, a prisoner without a lawyer, filed a complaint under 42
U.S.C. § 1983. Under 28 U.S.C. § 1915A, the 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 an immune defendant. The court remains mindful that “[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).
Mr. Spann-El alleges that in May 2020, he was transferred to the restrictive housing
unit at Miami Correctional Facility (MCF), where he remained until July 2020. He believes
the transfer violated Indiana Department of Correction policy because he had not been
found guilty of a disciplinary infraction. He further claims that his cell in the housing unit
didn’t have an intercom. He doesn’t allege that he personally had a need for an intercom
during the time he was in restricted housing, but he claims he frequently had to “yell at

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the glass” to get help for other inmates. He further claims that he had to store his personal
property in cardboard boxes, and that he was required to go without a shower for five
days during early July 2020. He believes all of these conditions violated IDOC policy,
which he says mandates intercoms in each cell, the provision of a metal property box to
all inmates, and a shower every three days. Based on these events, he seeks $1.5 million
in damages and other relief.
To state a 42 U.S.C. § 1983 claim, 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. Spann-El’s
allegations focus on IDOC policies, but a violation of IDOC policy doesn’t give rise to a
constitutional claim. Wozniak v. Adesida, 932 F.3d 1008, 1011 (7th Cir. 2019) (“a
constitutional suit is not a way to enforce state law through the back door”); Scott v.
Edinburg, 346 F.3d 752, 760 (7th Cir. 2003) (“42 U.S.C. § 1983 protects plaintiffs from
constitutional violations, not violations of state laws”).
To the extent he is asserting a federal due process claim based on his transfer
within the prison, prison officials are entitled to “wide-ranging deference” in connection
with their housing decisions. Girtler v. Fedie, No. 19-2990, 2020 WL 6481797, 2 (7th Cir.
Nov. 4, 2020) (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)); see also Shango v. Jurich, 681
F.2d 1091, 1102 (7th Cir. 1982) (observing that prison transfers are “the business of
penologists and not the business of federal judges”) (citation and internal quotation
marks omitted). Additionally, the complaint reveals that Mr. Spann-El was in restricted
housing for only a few months, which is “generally not long enough to trigger due
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process protections.” McCoy v. Atherton, 818 F. Appx. 538, 542 (7th Cir. 2020). Nor has he
described the type of atypical, harsh conditions that would implicate a due process liberty
interest. See Sandin v. Conner, 515 U.S. 472, 484 (1995); see also Hardaway v. Meyerhoff, 734
F.3d 740, 744 (7th Cir. 2013) (inmate was not deprived of a due process liberty interest
when he spent six months in segregation and had only weekly access to showers).
Mr. Spann-El’s allegations about the improper storage of his personal property
also don’t adumbrate a due process claim. If any of his property was damaged, he has an
adequate state post-deprivation remedy available. Wynn v. Southward, 251 F.3d 588, 593
(7th Cir. 2001) (“[Plaintiff] has an adequate post deprivation remedy in the Indiana Tort
Claims Act, and no more process was due.”).
Although unclear, he may be claiming that the five-day period he went without a
shower violated his rights under the Eighth Amendment. In evaluating an Eighth
Amendment claim, courts conduct both an objective and a subjective inquiry. Farmer v.
Brennan, 511 U.S. 825, 834 (1994). The objective prong asks whether the alleged
deprivation is “sufficiently serious” that the action or inaction of a prison official leads to
“the denial of the minimal civilized measure of life's necessities.” Id. (citations omitted).
On the subjective prong, the prisoner must allege that the defendant acted with deliberate
indifference to his health or safety. Id.; Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005).
The Eighth Amendment does not entitle inmates to daily showers, and one shower
per week is constitutionally sufficient. Henderson v. Lane, 979 F.2d 466, 469 (7th Cir. 1992);
Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir. 1988). There is no indication from
the complaint that this temporary shower restriction impaired Mr. Spann-El’s health or
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was anything other than a minor inconvenience. He has not described a condition serious
enough to trigger Eighth Amendment protections.
He also cannot satisfy the subjective prong with allegations that a defendant acted
with deliberate indifference to his health or safety. Farmer, 511 U.S. at 834. He names
Indiana Attorney General Curtis Hill and Warden William Hyatte as defendants, but
there is no indication that these high-ranking state officials had any personal involvement
in these events. They cannot be held liable simply because they oversee law enforcement
operations within the state or supervise correctional personnel. Burks v. Raemisch, 555
F.3d 592, 596 (7th Cir. 2009). Mr. Spann-El also names Lieutenant Morgan and Captain
Bennet (first names unknown) as defendants, but he does not mention them in the body
of the complaint, and there is no factual content from which it can be plausibly inferred
that these individuals were personally aware of the shower schedule or were otherwise
deliberately indifferent to Mr. Spann-El’s health or safety. He also sues the State of
Indiana, but the Eleventh Amendment bars his claim for damages against the state. de
Lima Silva v. Dep’t of Corr., 917 F.3d 546, 565 (7th Cir. 2019). Therefore, his allegations don’t
state a plausible claim for relief under 42 U.S.C. § 1983.
In the interest of justice, the court will allow Mr. Spann-El to amend his complaint
if, after reviewing the court’s order, he believes that he can state a plausible constitutional
claim, consistent with the allegations he has already made. See Abu-Shawish v. United
States, 898 F.3d 726, 738 (7th Cir. 2018); Luevano v. Wal-Mart, 722 F.3d 1014, 1025 (7th Cir.
2013).
For these reasons, the court:
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(1) GRANTS the plaintiff until December 16, 2020 to file an amended complaint if
he so wishes; and
(2) CAUTIONS him that if he does not respond by the deadline, this case will be
dismissed under 28 U.S.C. § 1915A, because the current complaint does not state a claim
upon which relief can be granted.
SO ORDERED.
s/ Damon R. Leichty
Judge, United States District Court

November 16, 2020

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