GRIFFITH v. A. DOWNEY et al

Filing 5

Entry Screening Complaint and Directing Further Proceedings - The plaintiff's request to proceed in forma pauperis [dkt. 4 ] is granted. Given the foregoing, the following excessive force claim shall proceed. All other claims and defendants inc luding A. Downey, Kevin Allen, Fernell McDonald, Storm, Lt. Nicholson, Rob Marshall, Kevin Hunter, and the Sullivan County Prosecutor are dismissed. The clerk is directed to terminate these defendants on the docket. If the plaintiff believes that ad ditional claims were alleged in the complaint, but not identified by the Court he shall have through March 15, 2017, in which to identify those claims. The clerk is designated pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to defendants. (See Entry.) Copy sent to Plaintiff via U.S. Mail. Signed by Judge Tanya Walton Pratt on 2/23/2017. (JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JAMES F. GRIFFITH,

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Plaintiff,
vs.
A. DOWNEY CWM, F. BRANNICK C/O,
KEVIN ALLEN Corr. Police Officer,
D. HASKINS, FERNELL MCDONALD,
STORM Investigator, LT. NICHOLSON Lt.,
YARBAR Lt., ROB MARSHALL,
DEVINE SGT., E. DRADA Sgt.,
N. LYDAY Sgt., PHILLIPS Sgt.,
KEVIN HUNTER UTM,
SULLIVAN COUNTY PROSECUTOR,
Defendants.

Case No. 1:17-cv-00194-TWP-MJD

Entry Screening Complaint and Directing Further Proceedings
I.
The plaintiff’s request to proceed in forma pauperis [dkt. 4] is granted. The assessment of
even a partial filing fee is not feasible at this time. Notwithstanding the foregoing ruling, the
plaintiff owes the filing fee. “All [28 U.S.C.] § 1915 has ever done is excuse pre-payment of the
docket fees; a litigant remains liable for them, and for other costs, although poverty may make
collection impossible.” Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996).
II.
The plaintiff is a prisoner currently incarcerated at New Castle Correctional Facility and
the events that form the basis for this civil action occurred at Wabash Valley Correctional Facility.
1

Because the plaintiff is a “prisoner” as defined by 28 U.S.C. § 1915(h), this Court has an obligation
under 28 U.S.C. § 1915A(b) to screen his complaint before service on the defendants. Pursuant to
28 U.S.C. § 1915A(b), the Court must dismiss the complaint if it is frivolous or malicious, fails to
state a claim for relief, or seeks monetary relief against a defendant who is immune from such
relief. In determining whether the complaint states a claim, the Court applies the same standard
as when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See
Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal,
[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 (2009). Pro se complaints such as that filed by the plaintiff
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).
III.
Given the foregoing, the following excessive force claim shall proceed. The plaintiff
claims that defendants Brannick, Drada, Yarber, Lyday, Haskins, Devine and Phillips used
excessive force when the plaintiff was handcuffed and sitting down on the floor refusing to get up
or to walk to F cell house while at Wabash Valley Correctional Facility. These defendants allegedly
dragged the plaintiff to F cell house. The defendants also carried him down the stairs and once
they were outside where no cameras were, body slammed the handcuffed plaintiff, jumped on him
and started beating on him. This Eighth Amendment claim shall proceed.
All other claims and defendants including A. Downey, Kevin Allen, Fernell McDonald,
Storm, Lt. Nicholson, Rob Marshall, Kevin Hunter, and the Sullivan County Prosecutor are

dismissed. The clerk is directed to terminate these defendants on the docket. The claims against
these defendants are dismissed for the following reasons.
First, there can be no recovery for a failure to protect claim where the plaintiff was not
harmed by his placement in segregation and later in F cell house and where there is no claim that
he is in continuing danger. Damages for “a deliberate indifference claim cannot be predicated
merely on knowledge of general risks of violence,” Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir.
2000), or fear of an unrealized attack, see Babcock v. White, 102 F.3d 267, 270 (7th Cir. 1996).
Second, the complaint alleges that Offender Worden has been charged with the attempted
murder of Offender Ricky Russell. Offender Worden and the plaintiff were cell mates. The
plaintiff explains that naming him as a State’s witness in the criminal case against Offender
Worden was wrong because he has no knowledge of the incident and is not cooperating with the
State in the prosecution of Offender Worden. However, the complaint alleges that the plaintiff was
listed as a witness because the victim, Offender Russell, reported that the plaintiff was one of the
offenders who attacked him. Further investigation proved this allegation to be false. Under these
circumstances, it cannot be unconstitutional for the prosecutor to name the plaintiff as a witness
and the Department of Correction defendants cannot be liable for how the prosecutor litigated the
criminal case. The plaintiff’s name appeared on the State’s witness list because of statements made
by Offender Russell. This factual allegation is insufficient to create liability on the part of the
defendants.
Finally, the claim that Nicholson and Marshal tried to cover up the seriousness of the
excessive force used on the plaintiff also fails to state a claim. The allegations against these
defendants do not suggest a plausible basis for concluding that they caused or participated in the
alleged constitutional deprivation. See Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983);
Johnson v. Snyder, 444 F.3d 579, 583-84 (7th Cir. 2006). Merely acting or not acting on the

plaintiff’s complaints did not cause the underlying denial of rights the plaintiff alleges. To allow
liability to be based upon “such a broad theory. . . [would be] 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); Vance v. Rumsfeld, 701 F.3d 193, 204, 2012
WL 5416500, 10 (7th Cir. 2012) (knowledge of subordinates’ misconduct is not enough for
liability); George v. Smith, 507 F.3d 605, 609 ((7th Cir. Cir. 2007)(“Only persons who cause or
participate in the violations are responsible”; an official “who rejects an administrative complaint
about a completed act of misconduct does not [cause or contribute to the violation]”).
If the plaintiff believes that additional claims were alleged in the complaint, but not
identified by the Court he shall have through March 15, 2017, in which to identify those claims.
IV.
The clerk is designated pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to defendants
(1) Correctional Officer F. Brannick, (2) Sgt. E. Drada, (3) Lt. Yarber, (4) Sgt. N. Lyday, (5) D.
Haskins, (6) Sgt. Devine and (7) Sgt. Phillips in the manner specified by Fed. R. Civ. P. 4(d).
Process shall consist of the complaint (docket 1), applicable forms (Notice of Lawsuit and Request
for Waiver of Service of Summons and Waiver of Service of Summons), and this Entry.
The clerk is directed to update the plaintiff’s address on the docket consistent with the
distribution portion of this Entry.
IT IS SO ORDERED.

Date: 2/23/2017

Distribution:
JAMES F. GRIFFITH
DOC # 117892
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362
Electronic Service to Defendant Employees of Wabash Valley Correctional Facility:
(1) Correctional Officer F. Brannick
(2) Sgt. E. Drada
(3) Lt. Yarber
(4) Sgt. N. Lyday
(5) D. Haskins
(6) Sgt. Devine
(7) Sgt. Phillips