CISLO v. BANDY et al

Filing 7

ENTRY - Granting Motion to Proceed In Forma Pauperis, Screening Complaint, Dismissing Insufficient Claims and Directing Service of Process; The plaintiff's motion to proceed in forma pauperis, dkt. #3 , is granted. The plaintiff's motion requesting service of process, dkt. #5 , is denied as unnecessary. The clerk is designated pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to Dale Bandy in the manner specified by Rule 4(d). Process shall consist of the complaint, applicable forms (Notice of Lawsuit and Request for Waiver of Service of Summons and Waiver of Service of Summons), and this Entry. Signed by Judge Sarah Evans Barker on 8/29/2018. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RONNIE B. CISLO,
Plaintiff,
v.
DALE BANDY,
ERIC RAWLINS,
CRAIG CRAIGE,
JOHN DOE #1,
JOHN DOE #2,
Defendants.

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No. 1:18-cv-02510-SEB-DLP

Entry Granting Motion to Proceed In Forma Pauperis, Screening Complaint,
Dismissing Insufficient Claims and Directing Service of Process
I. In Forma Pauperis
The plaintiff’s motion for leave to proceed without prepaying fees or costs, dkt [3], is
granted because the Court finds that the plaintiff does not have the assets or means to pay even
an initial partial filing fee. Because the Prison Litigation Reform Act mandates that a prisoner will
not be prohibited from bringing a civil action for the reason that he lacks the assets and means to
pay an initial partial filing fee, 28 U.S.C. § 1915(b)(4), the plaintiff will be granted a waiver of
payment of the initial partial filing fee in this case. He is still obligated, however, to pay the full
filing fee pursuant to the statutory formula set forth in 28 U.S.C. § 1915(b)(2). See id. § 1915(b)(1).
“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.” AbdulWadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996).

II. Screening Standard
The plaintiff is a prisoner currently incarcerated at the Pendleton Correctional Facility
(Pendleton). 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).
II. The Complaint
The complaint alleges that on May 10, 2018, the plaintiff was picked up by defendants
Indiana Department of Correction Transportation Officers Dale Bandy and Eric Rawlins from the
Dallas County Sheriff’s Department, in Dallas, Texas. He was in the psychiatric unit at the Dallas
County Jail at the time. The plaintiff has a long history of mental health issues.
During the trip back to Indiana, the plaintiff suffered a severe mental health episode such
that Bandy and Rawlins contacted defendant Warden Craig Craige for guidance. Craige instructed
Bandy and Rawlins to call the Arkansas State Police for assistance. The plaintiff was taken to the

Hot Springs, Arkansas, Jail where he was placed in a restraint chair by defendant John Doe 2 and
an inmate trustee. The plaintiff was taken to a secure cell. He remained in the restraint chair for
the next 10 hours, but did receive two three minute restroom breaks. He was also assaulted by
Bandy. Bandy forced the plaintiff to tuck his penis into his anus.
He asked for medical attention while he was in the restraint chair. The next morning, John
Doe 1 arrived and two additional transport officers, including Officer Davis, from Indiana arrived
to finish transporting the plaintiff to Indiana.
They drove straight through to the Reception and Diagnostic Center (RDC) in Plainfield,
Indiana. Because they did not stop, the plaintiff was forced to urinate and defecate on himself.
Upon arrival at RDC, Craige wrote the plaintiff up on three frivolous disciplinary actions.
He was given 105 days solitary confinement, and now is being held beyond his out date.
The plaintiff is receiving pain medication for the injuries he sustained as a result of being
confined in the restraint chair.
III. Insufficient Claims
Applying the screening standard to the factual allegations in the complaint certain claims
are dismissed while other claims shall proceed as submitted.
Claims against all unknown John Doe defendants are dismissed for failure to state a
claim upon which relief can be granted because “it is pointless to include [an] anonymous
defendant [ ] in federal court; this type of placeholder does not open the door to relation back under
Fed.R.Civ.P. 15, nor can it otherwise help the plaintiff.” Wudtke v. Davel, 128 F.3d 1057, 1060
(7th Cir. 1997) (internal citations omitted). Bringing suit against unnamed, or “John Doe,”
defendants in federal court is generally disfavored by the Seventh Circuit.
The plaintiff’s Eighth Amendment claim that he was forced to urinate and defecate on
himself while they were traveling to Indiana is dismissed for failure to state a claim. See

Cunningham v. Eyman, 17 Fed. Appx. 449, 454 (7th Cir. 2001) (inmate failed to establish an Eighth
Amendment claim where he alleged that he urinated and defecated on himself and was forced to
remain in his soiled clothing for four to five hours because the officers refused to remove his
restraints so he could use the toilet); Key v. McKinney, 176 F.3d 1083, 1086 (8th Cir. 1999)
(prisoner who was restrained in handcuffs and shackles for 24 hours, making it more difficult for
him to relieve himself, did not suffer a constitutional violation); Harris v. Fleming, 839 F.2d 1232,
1235 (7th Cir. 1988) (temporary neglect of prisoner’s hygienic needs is insufficient to establish an
Eighth Amendment violation); Samu v. Stewart, 1:10-CV-857, 2011 WL 4064289 (W.D. Mich.
June 6, 2011) report and recommendation adopted, 1:10-CV-857, 2011 WL 4074781 (W.D. Mich.
Sept. 13, 2011) (an isolated and relatively short delay in permitting a prisoner to use a restroom is
not the sort of deprivation that implicates the Eighth Amendment).
The plaintiff’s claim that the defendants violated the Eighth Amendment when they failed
to call a medical care provider during his transport from Texas to Indiana is dismissed for failure
to state a claim. 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” so that “a prison official’s act results in
the denial of the minimal civilized measure of life’s necessities.” Id. The subjective prong asks
whether the defendant was deliberately indifferent. “[C]onduct is deliberately indifferent when the
official has acted in an intentional or criminally reckless manner, i.e., the defendant must have
known that the plaintiff was at serious risk of being harmed and decided not to do anything to
prevent that harm from occurring even though he could have easily done so.” Board v. Farnham,
394 F.3d 469, 478 (7th Cir. 2005) (quotation marks, brackets, and citation omitted).

A delay of mental health treatment for 1-2 days while the plaintiff was being transported
to Indiana did not deprive the plaintiff of the minimal civilized measure of life’s necessities.
Although the plaintiff does not challenge the disciplinary sanctions he received when he
returned to the RDC, such claims are not cognizable in a § 1983 action and are properly brought
in a 28 U.S.C. § 2254. As such, the plaintiff’s request for relief in the form of a preliminary and
permanent injunction ordering defendant Craige to address the frivolous write-ups may not
proceed in this action.
IV. Claims That May Proceed
The plaintiff’s Eighth Amendment claim for money damages that defendant Bandy
assaulted him in a sexual manner may proceed.
The plaintiff’s Eighth Amendment claim for money damages that defendant Bandy secured
him in a restraint chair and tightened the restraints too tight causing him lasting pain may proceed.
V. Duty to Update Address
The pro se plaintiff shall report any change of address within ten (10) days of any change.
The Court must be able to locate the plaintiff to communicate with him. If the plaintiff fails to keep
the Court informed of his current address, the action may be subject to dismissal for failure to
comply with Court orders and failure to prosecute.
VI. Service of Process
The clerk is designated pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to Dale Bandy
in the manner specified by Rule 4(d). Process shall consist of the complaint, applicable forms
(Notice of Lawsuit and Request for Waiver of Service of Summons and Waiver of Service of
Summons), and this Entry.

VII. Summary
The plaintiff’s motion to proceed in forma pauperis, dkt. [3], is granted.
The plaintiff’s Eighth Amendment claim for money damages that defendant Bandy
assaulted him in a sexual manner may proceed.
The plaintiff’s Eighth Amendment claim for money damages that defendant Bandy secured
him in a restraint chair and tightened the restraints too tight causing him lasting pain may proceed.
The plaintiff’s motion requesting service of process, dkt. [5], is denied as unnecessary.
IT IS SO ORDERED.
8/29/2018
Date:_______________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
RONNIE B. CISLO
149961
PENDLETON - CF
PENDLETON CORRECTIONAL FACILITY
Electronic Service Participant – Court Only
DOC Employee to be electronically served:
Dale Bandy
Reception and Diagnostic Center Transport Officer