BROCK v. FITCH et al

Filing 13

ENTRY discussing complaint and Directing Further Proceedings. The Indiana Department of Correction claim is dismissed. Similarly, the official capacity claims against defendants Fitch, Collins, Gard, Smith and Howard must be dismissed because thes e claims are in all respects other than name against the State of Indiana. The claim against Hurley in his individual capacity is dismissed. Any due process and equal protection claims asserted pursuant to the 14th Amendment are dismissed. The clerk shall issue and serve process on the remaining defendants. Signed by Judge Tanya Walton Pratt on 6/6/2014 (dist made)(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DARYL BROCK,
Plaintiff,
v.
MR. FITCH, et al.,
Defendants.

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Case No. 1:13-cv-1703-TWP-DKL

Entry Discussing Complaint and Directing Further Proceedings
I.
Plaintiff Daryl Brock is an inmate currently confined at the New Castle Correctional
Facility. He brings this action pursuant to 42 U.S.C. § 1983 alleging a violation of the Eighth and
Fourteenth Amendments. He names the following defendants: Mr. Fitch, Assistant
Superintendent of Security; Mr. Collins, Captain; Mr. Gard, Correctional Officer; Jennifer Smith,
Grievance Specialist; Ms. Howard, Correctional Officer; John Hurley, Owner GEO Group; and
the Indiana Department of Correction. He is suing each of the defendants in both their individual
and official capacities. He is seeking compensatory and punitive damages, and injunctive relief.
Because Brock is a “prisoner” as defined by 28 U.S.C. § 1915(h), the Court must screen
his complaint as required by 28 U.S.C. § 1915A(b). Pursuant to this statute, “[a] complaint is
subject to dismissal for failure to state a claim if the allegations, taken as true, show that the
plaintiff is not entitled to relief.” Jones v. Bock, 127 S. Ct. 910, 921 (2007). A complaint falls
within this category if it “alleg[es] facts that show there is no viable claim.” Pugh v. Tribune Co.,
521 F.3d 686, 699 (7th Cir. 2008). To survive dismissal under federal pleadings standards,
[the] complaint must contain sufficient factual matter, accepted as true, to state a
claim for relief that is plausible on its face. A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed. 868 (2009). Pro se complaints
such as that filed by Brock are construed liberally and held to a less stringent standard than
formal pleadings drafted by lawyers. Obriecht v. Raemisch, 517 F.3d 489, 491 n. 2 (7th Cir.
2008). Nonetheless, “[p]ro se litigants are masters of their own complaints and may choose who
to sue-or not to sue,” Myles v. United States, 416 F.3d 551, 552 (7th Cir. 2005), and the court
may not rewrite a complaint to include claims that were not presented. Barnett v. Hargett, 174
F.3d 1128, 1133 (10th Cir. 1999).
Brocks’s complaint is brought pursuant to 42 U.S.C. § 1983. A cause of action is
provided by § 1983 against “[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, . . . subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws” of the United
States. Section 1983 is not itself a source of substantive rights; instead, it is a means for
vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989)
(citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). The initial step in any § 1983 analysis
is to identify the specific constitutional right which was allegedly violated. Id. at 394; Kernats v.
O'Sullivan, 35 F.3d 1171, 1175 (7th Cir. 1994); see also Gossmeyer v. McDonald, 128 F.3d 481,
489-90 (7th Cir. 1997). In this case, the complaint alleges that the defendants were deliberately
indifferent to his serious medical needs (specifically his need for dental treatment) in violation
the Eighth Amendment.
The constitutional provision pertinent to Brock’s claim is the Eighth Amendment’s
proscription against the imposition of cruel and unusual punishment. Helling v. McKinney, 509

U.S. 25, 31 (1993) (“It is undisputed that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth Amendment.”).
Specifically, the Eighth Amendment imposes a duty on prison officials to provide medical care
to inmates. Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996), cert. denied, 520 U.S. 1230
(1997). In order for an inmate to state a claim under §1983 for medical mistreatment or denial of
medical care, the prisoner must allege “acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Deliberate indifference exists only when an official “knows of and disregards an excessive risk
to an inmate’s health; the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (construing Estelle).
A corollary to the element of deliberate indifference of a claim such as asserted here is
that the defendant can only be liable for the actions or omissions in which he personally
participated. Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001). “[A]n official meets the
personal involvement requirement when she acts or fails to act with a deliberate or reckless
disregard of plaintiff's constitutional rights, or if the conduct causing the constitutional
deprivation occurs at her direction or with her knowledge and consent.” Black v. Lane, 22 F.3d
1395, 1401 (7th Cir. 1994)(quoting Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985))(citations
and internal quotations omitted). Without such an allegation, -- a complaint must allege facts to
state a claim to relief that is plausible on its face, --there could be no recovery under 42 U.S.C. §
1983. Burks v. Raemisch, 555 F.3d 592, 593-94 (7th Cir. 2009) (“Section 1983 does not establish
a system of vicarious responsibility. Liability depends on each defendant’s knowledge and
actions, not on the knowledge or actions of persons they supervise. . . . Monell’s rule [is that]

that public employees are responsible for their own misdeeds but not for anyone else’s.”)(citing
Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978)).
II.
Applying the foregoing principles to Brock’s complaint, certain claims must be
dismissed:
First, as an agency of the State of Indiana, the Department of Correction (“DOC”) is not a
“person” subject to suit pursuant to § 1983. Additionally, the DOC (as the alter-ego of the State
of Indiana) cannot be sued in federal court under the circumstances alleged in the complaint
because of Indiana’s Eleventh Amendment immunity. Omosegbon v. Wells, 335 F.3d 668, 673
(7th Cir. 2003); Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 788 (7th Cir. 1995).
Accordingly, the Indiana Department of Correction is dismissed. Similarly, the official capacity
claims against defendants Fitch, Collins, Gard, Smith, and Howard must be dismissed because
these claims are in all respects other than name against the State of Indiana. Will v. Mich. Dep't
of State Police, 491 U.S. 58 (1989).
The claim against Hurley in his individual capacity is dismissed because Brock did not
allege any personal involvement by Hurley in the alleged constitutional violation. Palmer v.
Marion County, 327 F.3d 588, 597 (7th Cir. 2003).
On the first page of his complaint, Brock references a Fourteenth Amendment claim.
(Dkt. 1). Any due process and equal protection claims asserted pursuant to the Fourteenth
Amendment are dismissed. Brock’s claims are sufficiently based on the protections afforded by
the Eighth Amendment to the Constitution, which is made applicable to state action by
interpretation of the due process clause of the Fourteenth Amendment. Withers v. Wexford
Health Sources, Inc., 710 F.3d 688, 688 (7th Cir. 2013). There are no allegations sufficient to

invoke the important but limited protections of due process and equal protection. Albright v.
Oliver, 510 U.S. 266, 273 (1994) ("Where a particular Amendment provides an explicit textual
source of constitutional protection against a particular sort of government behavior, that
Amendment, not the more generalized notion of substantive due process, must be the guide for
analyzing such a claim.") (plurality opinion of Rehnquist, C.J.) (internal quotations omitted).
III.
The following claims may proceed:
Brock’s policy and practice claim that it is the policy and practice of GEO Group to deny
Brock medical (and dental) care and to be deliberately indifference to his serious medical needs
shall proceed against John Hurley. Any claim for injunctive relief may also proceed against John
Hurley in his official capacity.
The claim that Fitch, Collins, Gard, Smith, and Howard were deliberately indifferent to
Brock’s serious medical needs shall proceed against these defendants in their individual capacity
only for compensatory and punitive damages.
IV.
In summary, Brock’s claim against the Indiana Department of Correction is dismissed.
The claims against Fitch, Collins, Gard, Smith, and Howard in their official capacities and
against Hurley in his individual capacity are also dismissed. The claim against Fitch, Collins,
Gard, Smith, and Howard in their individual capacities may proceed, and the claim against
Hurley in his official capacity may proceed. Finally, any independent due process claim is
dismissed.
No final judgment shall issue at this time as to the claims dismissed in this Entry.
The clerk is designated pursuant to Fed. R. Civ. P. 4(c)(3) to issue and serve process on

the remaining defendants in the manner specified by Fed. R. Civ. P. 4(d)(1). Process shall consist
of the complaint, applicable forms and this Entry.
IT IS SO ORDERED.

06/06/2014
Date:__________________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

NOTE TO CLERK: PROCESSING THIS DOCUMENT REQUIRES ACTIONS IN ADDITION TO DOCKETING AND DISTRIBUTION.

Distribution:
Daryl Brock
#881988
New Castle Correctional Facility
Inmate Mail/Parcels
1000 Van Nuys Road
New Castle, Indiana 47362
Mr. Fitch
Assistant Superintendent of Security
NCCF
PO Box A
New Castle, Indiana 47362
Mr. Collins
Captain
NCCF
PO Box A
New Castle, Indiana 47362

Mr. Gand
Correctional Officer
NCCF
PO Box A
New Castle, Indiana 47362
Jennifer Smith
Grievance Specialist
NCCF
PO Box A
New Castle, Indiana 47362
Ms. Howard
Correctional Officer
NCCF
PO Box A
New Castle, Indiana 47362
John M. Hurley
Owner/Operator GEO Group, Inc.
One Park Place
621 N.W. 53rd St., Suite 700
Boca Raton, FL 33486