HERRON v. LOCKETT et al

Filing 38

Entry Discussing Defendant's Motion to Dismiss and Plaintiff's Motion to Amend and Directing Further Proceedings - For the reasons explained in this Entry, the defendant's motion to dismiss 22 is granted in part and denied in part. The plaintiff's motion for leave to amend 36 is denied. Lt. Meyer shall have through March 17, 2014, in which to file his answer to the complaint, in which deliberate indifference is the only remaining claim. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 2/20/2014. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
BRIAN HERRON,
Plaintiff,
vs.
LT. D. MEYER,
Defendant.

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Case No. 2:13-cv-109-JMS-WGH

Entry Discussing Defendant’s Motion to Dismiss and Plaintiff’s Motion to Amend
and Directing Further Proceedings
For the reasons explained in this Entry, the defendant’s motion to dismiss [dkt. 22] is
granted in part and denied in part. The plaintiff’s motion for leave to amend [dkt. 36] is
denied.
I. Motion to Dismiss
A.

Background

Plaintiff Brian Herron (“Mr. Herron”), an inmate at the United States Penitentiary
(“USP”) in Tucson, Arizona, alleges that his constitutional rights were violated while he was an
inmate at the USP in Terre Haute, Indiana (“USP-TH”). Mr. Herron brings his claims under the
theory set forth in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). He seeks
compensatory and punitive damages.
Mr. Herron alleges that Lt. D. Meyer was deliberately indifferent to his safety, in
violation of the Eighth Amendment to the United States Constitution, and also punished Mr.
Herron for objecting to being housed with another inmate and filing administrative complaints
against various Bureau of Prison (“BOP”) employees, in violation of the First Amendment. In

the screening Entry issued on May 14, 2013, the Court concluded that these were the only claims
that would proceed.
Lt. Meyer seeks dismissal of the complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Mr. Herron has opposed the motion to dismiss and seeks leave to
amend his complaint. Lt. Meyer has opposed the motion to amend.
B.

Allegations

Mr. Herron alleges in his complaint that he is wheelchair bound and wears medical
undergarments for incontinence. On December 28, 2011, Mr. Herron was housed in the Special
Housing Unit (“SHU”) at the USP-TH in the lower B range in a cell that was wheelchair
accessible. Mr. Herron alleges he suffers from severe cognitive and motor deficits due to an
assault in January of 2008 which caused head injuries including a subdural hematoma.
Mr. Herron alleges that on that day, Lt. Meyer came to Mr. Herron’s cell along with other
unnamed correctional officers and an inmate who was handcuffed from behind wearing security
paper clothing. Lt Meyer asked Mr. Herron if he “ha[d] a problem with being housed in the same
cell with this guy.” Mr. Herron did not know the other inmate and alleges that the other inmate
told him he had just been released from four-point restraints for “beating up” his previous
cellmate. Mr. Herron verbally objected to being housed in the same cell as the other inmate
because he feared the other inmate would attack him. Mr. Herron told Lt. Meyer that he had been
taunted and physically attacked by his previous cellmate and had been housed by himself since
December 21, 2011. Mr. Herron alleges that Lt. Meyer loudly told him that “you are not going to
sit in my SHU living high on the hog - I have something in store for you.” Lt. Meyer and other
SHU officers then placed Mr. Herron in handcuffs and carried him while sitting in his wheelchair
up the stairs to another cell on the upper A range, which was non-handicap and not wheelchair

accessible. The cell was sometimes used to place out-of-control inmates in physical restraints. It
contained a single concrete bed with restraint attachments and no shower.
Mr. Herron alleges that he told Lt. Meyer that he could not transfer onto the toilet without
handicap handrails on the wall and toilet. He further alleges that Lt. Meyer ignored his plea and
closed the cell door and left the range. Several hours later, Mr. Herron attempted to transfer from
his wheelchair to the toilet. Mr. Herron fell and hit his face on the sink/toilet, wall and floor,
causing swelling and a laceration to his right forehead and knocking him temporarily
unconscious. SHU staff discovered Mr. Herron. He was seen by a nurse and then transported to a
local hospital emergency room where he was treated and returned to the prison at 2:30 a.m. the
next morning.
C.

Legal Standard

In considering a motion to dismiss for failure to state a claim, the Court reviews the
complaint in light of Rule 8(a)(2) of the Federal Rules of Civil Procedure, which provides: “A
pleading that states a claim for relief must contain: a short and plain statement of the claim
showing that the pleader is entitled to relief.” Rule 12(b)(6) authorizes dismissal of complaints
that state no actionable claim. In conducting an appropriate analysis for this purpose,
[a]ll well-pleaded facts are accepted as true, and all reasonable inferences are
drawn in the plaintiff's favor. [Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th
Cir. 2008)]. The allegations in the complaint “must plausibly suggest that the
plaintiff has a right to relief, raising that possibility above a ‘speculative level’; if
they do not, the plaintiff pleads itself out of court.” EEOC v. Concentra Health
Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 127 S. Ct. 1955, 1965, 1973 n.14, 167 L.Ed.2d 929 (2007)).
Hale v. Victor Chu, 614 F.3d 741, 744 (7th Cir. 2010). “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).

D. Discussion
Defendant Meyer argues that he is entitled to dismissal of both of the plaintiff’s claims.
The Court will address each one in turn.
1.

Eighth Amendment Claim

To state a conditions of confinement claim under the Eighth Amendment, a plaintiff must
allege that 1) he was incarcerated under conditions that posed a substantial risk of serious harm,
and 2) the defendant was deliberately indifferent to that risk. See Townsend v. Fuchs, 522 F.3d
765, 773 (7th Cir. 2008). To state deliberate indifference, the plaintiff must allege that the prison
official “knows of and disregards an excessive risk to inmate health or safety; 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.” Estate of Miller, ex rel. Bertram v. Tobiasz,
680 F.3d 984, 989 (7th Cir. 2012) (internal quotations omitted).
In response to a motion to dismiss pursuant to Rule 12(b)(6), “a plaintiff need only show
that the complaint contains the necessary allegations to state a claim.” Smith v. Knox County Jail,
666 F.3d 1037, 1039 (7th Cir. 2012). Lt. Meyer argues that Mr. Herron suffered no constitutional
deprivation. Lt. Meyer notes that Mr. Herron did not allege that he was deprived of his
wheelchair, denied medical care, deprived of basic needs, or suffered inhumane conditions for a
prolonged period of time. While this is true, Mr. Herron does allege that he told Lt. Meyer that
he could not transfer from his wheelchair onto the toilet without handicap handrails on the wall
and toilet. Lt. Meyer allegedly ignored Mr. Herron and closed the cell door. The issue at the
pleading stage is whether knowing of Mr. Herron’s difficulty in using the toilet put Lt. Meyer on
notice of a substantial risk of harm.

“[P]ro se pleadings deserve liberal construction” and Mr. Herron’s allegations do not
foreclose the possibility that a reasonable jury could find that Lt. Meyer was deliberately
indifferent to a serious risk of harm. Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001).
Under these circumstances, the Court does not find that it appears “beyond doubt that [Mr.
Herron] can prove no set of facts consistent with his complaint that would entitle him to relief.”
Id. Drawing all reasonable inferences in Mr. Herron’s favor, Lt. Meyer’s motion to dismiss the
claim of deliberate indifference must be denied.
2.

Retaliation Claim

Mr. Herron alleges that Lt. Meyer punished him for objecting to being assigned a cellmate and for filing administrative grievances. In screening the complaint, the Court generously
construed this as a claim of retaliation.
“Prisoners’ grievances, unless frivolous, concerning the conditions in which they are
being confined are deemed petitions for redress of grievances and thus are protected by the First
Amendment.” Hasan v. U.S. Dept. of Labor, 400 F.3d 1001, 1005 (7th Cir. 2005) (internal
citation omitted). To state on a First Amendment retaliation claim, a plaintiff must allege that:
(1) he engaged in protected activity; (2) he was subjected to adverse actions by a state actor; and
(3) the protected activity was a motivating factor in the state actor's decision to take adverse
action. Id. “A motivating factor is a factor that weighs in the defendant’s decision to take the
action complained of--in other words, it is a consideration present to his mind that favors, that
pushes him toward, the action.” Id. at 1006.
As noted, Mr. Herron objected to having a cell-mate. Mr. Herron does not have a right to
demand a single cell, and objecting to having a cell-mate is not protected activity. See Oden v.
Wall, No. 94-2833, 69 F.3d 539, *3 (7th Cir. Oct. 26, 1995) (unpublished) (“An inmate has no

protected interest in choosing his cell assignment.”); Richards v. White, 957 F.2d 471, 475 (7th
Cir. 1992) (denial of single cell was a legitimate penological decision). Therefore, he has not
stated a claim of retaliation in relation to being assigned a cell-mate. Although filing grievances
is protected activity, Mr. Herron had not filed any such complaints before Lt. Meyer took him to
the non-accessible cell. Mr. Herron has failed to state a claim upon which relief can be granted
because Lt. Meyer’s actions were not taken in response to any protected activity. The facts
alleged by Mr. Herron, even if taken as true, do not support a claim of retaliation.1 Lt. Meyer’s
motion to dismiss [dkt. 22] any claim of retaliation is granted.
II. Motion to Amend
Mr. Herron seeks leave to amend his complaint. He wishes to add a claim pursuant to 18
U.S.C. § 4042. That statute sets forth various duties of the BOP. 18 U.S.C. § 4042 does not,
however, create a private cause of action against individual BOP officers. Harper v. Williford, 96
F.3d 1526, 1527 (D.C. Cir. 1996) (“section 4042 does not create a private right of action against
federal officials”). Leave to amend a complaint should not be granted “if it is clear that any
amendment would be futile.” Bogie v. Rosenberg, 705 F.3d 603, 608 (7th Cir. 2013). It would be
futile to add a claim under 18 U.S.C. § 4042. Therefore, Mr. Herron’s motion to amend [dkt. 36]
is denied.
III. Further Proceedings
Lt. Meyer shall have through March 17, 2014, in which to file his answer to the
complaint, in which deliberate indifference is the only remaining claim.
IT IS SO ORDERED.
02/20/2014

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

This is not to say that evidence of Mr. Herron’s objection is not admissible, as it may well be
relevant to Lt. Meyer’s state of mind.

Date: __________________
Distribution:
Brian Herron, 07930-033, Tucson United States Penitentiary, Inmate Mail/Parcels, P.O. Box
24550, Tucson, AZ 85734
Electronically registered counsel