COTTMAN v. ZATECKY et al

Filing 6

ENTRY - The claim against Superintendent Zatecky is dismissed. The claim against Correctional Officer Dennis Davis is dismissed. DENNIS DAVIS and DUSHAN ZATECKY terminated. The claims of denial of access to the courts asserted against defendan ts Counselor Thomas Richardson and Counselor Jeff Ballenger shall proceed. The clerk shall issue and serve process on defendants Counselor Thomas Richardson and Counselor Jeff Ballenger in the manner specified by Fed. R. Civ. P. 4(d) (2). Process in this case shall consist of the complaint filed on November 8, 2013, applicable forms, and this Entry. Signed by Judge Jane Magnus-Stinson on 12/12/2013. (copies sent via US Mail as directed)(JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JOSEPH COTTMAN,

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Plaintiff,
vs.
DUSHAN ZATECKY, et al.,
Defendants.

Case No. 1:13-cv-01793-JMS-DML

Entry Discussing Complaint, Dismissing Insufficient Claims, and
Directing Further Proceedings
Plaintiff Joseph Cottman (“Cottman”) is an inmate at Pendleton Correctional Facility. He
filed a civil rights complaint on November 8, 2013, and has paid his initial partial filing fee.
Cottman alleges that his right to access to the courts was denied when he was not
provided library passes and access to his legal materials in March through May of 2013. He
names four defendants: 1) Superintendent Dushan Zastecky; 2) Counselor Thomas Richardson;
3) Counselor Jeff Ballenger; and 4) Correctional Officer Dennis Davis He seeks compensatory
damages. The complaint is brought pursuant to 42 U.S.C. § 1983.
I.
The complaint is subject to the screening requirement of 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 plaintiff is not entitled to relief." Jones v. Bock, 549 U.S. 199, 215
(2007).
To satisfy the notice-pleading standard of Rule 8(a)(2) of the Federal Rules of Civil
Procedure, a complaint must provide a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Such statement must provide the defendant with “fair notice” of the
claim and its basis. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). The complaint “must contain sufficient factual matter,
accepted as true, to state a claim to 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 (2009) (internal quotation omitted). Pro se complaints such as that filed by Cottman are
construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.
Erickson, 551 U.S. at 94; Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).
Applying the standards set forth above, certain claims are dismissed while other claims
shall proceed, consistent with the following:
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The claim against Superintendent Zatecky is dismissed for failure to state a

claim upon which relief can be granted because the only factual allegations relating to
Zatecky are that Cottman sent Zatecky a request for interview to seek assistance in
obtaining passes to the law library before Cottman’s deadline to file an appellant brief in
his appeal of the denial of post-conviction relief in the Indiana state courts passed.
Cottman received no response from Superintendent Zatecky. The complaint does not
allege any personal participation in any unlawful acts on the part of Superintendent
Zatecky. Without personal liability, there can be no recovery under 42 U.S.C. ' 1983.
Burks v. Raemisch, 555 F.3d 592, 593-94 (7th Cir. 2009) (ASection 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.”)
(internal citation omitted). “It is well established that there is no respondeat superior

liability under § 1983.” Gayton v. McCoy, 593 F.3d 610, 622 (7th Cir. 2010). If an
official, who is not otherwise responsible for allegedly unconstitutional conditions or
actions, could be held liable upon being notified by the plaintiff, then a plaintiff could
choose to bring any and all officials within the scope of liability simply by writing a
series of letters. "[S]uch a broad theory of liability is inconsistent with the personal
responsibility requirement for assessing damages against public officials in a § 1983
action." Crowder v. Lash, 687 F.2d 996, 1006 (7th Cir. 1982).
●

The claim against Correctional Officer Dennis Davis is dismissed for failure to

state a claim upon which relief can be granted because the only allegation against Officer
Davis is that when Cottman was transferred from one cell to another, the personal
property inventory form was not filled out correctly by Officer Davis. At best, this claim
asserts negligence, and that is not sufficient to state a section 1983 claim. See Harper v.
Albert, 400 F.3d 1052, 1065 (7th Cir. 2005) (negligence or even gross negligence is not
enough to state a claim under § 1983).
No partial final judgment shall issue at this time as to the claims resolved in this Entry.
II.
The claims of denial of access to the courts asserted against defendants Counselor
Thomas Richardson and Counselor Jeff Ballenger shall proceed.
The clerk shall issue and serve process on defendants Counselor Thomas Richardson
and Counselor Jeff Ballenger in the manner specified by Fed. R. Civ. P. 4(d)(2). Process in this
case shall consist of the complaint filed on November 8, 2013, applicable forms, and this Entry.
IT IS SO ORDERED.
12/12/2013
Date: __________________

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

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

Distribution:
Joseph Cottman
#108912
Pendleton Correctional Facility
Inmate Mail/Parcels
4490 West Reformatory Road
Pendleton, IN 46064-9001
Counselor Thomas Richardson
Pendleton Correctional Facility
Inmate Mail/Parcels
4490 West Reformatory Road
Pendleton, IN 46064-9001
Counselor Jeff Ballenger
Pendleton Correctional Facility
Inmate Mail/Parcels
4490 West Reformatory Road
Pendleton, IN 46064-9001