LANIER v. MORRISON et al
Filing
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Entry Granting Officer Booker's Motion to Dismiss - 23 Motion to Dismiss for Failure to State a Claim is GRANTED. The clerk is directed to update the docket to reflect that Officer Booker is terminated as a defendant. No partial final judgment shall issue at this time as to the claims resolved in this Entry. Signed by Judge William T. Lawrence on 11/22/2016 (copy mailed to plaintiff). (LBT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
HOLLIS LANIER,
Plaintiff,
vs.
MORRISON Officer, BOOKER Officer,
BAKER, SHU Lt.
Defendants.
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Case No. 2:16-cv-00126-WTL-MJD
Entry Granting Officer Booker’s Motion to Dismiss
Plaintiff Hollis Lanier (“Lanier”) has not opposed the motion to dismiss filed by defendant
Officer Booker. The deadline for him to have done so has expired. Having considered the pleadings
and the unopposed motion to dismiss, the court finds that the defendant’s motion to dismiss [dkt.
23] must be granted. This conclusion rests on the following facts and circumstances:
1.
Lanier alleges that Officer Booker violated his rights under the Eighth Amendment
of the United States Constitution. Lanier seeks money damages. His claims are brought pursuant
to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
2.
Officer Booker seeks dismissal of the claims alleged against him pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. When evaluating a motion to dismiss the Court
“takes all well-pleaded allegations of the complaint as true and views them in the light most
favorable to the plaintiff.” Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010). These allegations
are reviewed to determine if they “plausibly” give rise to a claim that would entitle the complainant
to relief. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). To satisfy the notice-pleading standard
of Rule 8 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,” which is sufficient to provide
the defendant with “fair notice” of the claim and its basis. Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) and quoting Fed.
R. Civ. P. 8(a)(2)).
3.
The allegations pertinent to Officer Booker are the following: “On 4-3-15 Officer
Booker then brought me [a sack] lunch which had spit on it.” Dkt. 6 at p.3. The affidavit attached
to the complaint states, “On 4-3-15 Officer Booker then brought me [a sack] lunch which had spit
on the bread and hairs on the apple like pubic hairs.” Dkt. 6-1 at p. 2.
4.
The Eighth Amendment prohibits cruel and unusual punishment. The food Lanier
was allegedly served is a challenge to the conditions of his confinement. Although there is not a
static test, to state a conditions of confinement claim the condition at issue generally must subject
the plaintiff to a strong likelihood of serious harm or include a serious deprivation of basic human
needs. Rhodes v. Chapman, 452 U.S. 337, 346-47 (1981). The possibility of harm is not enough.
In addition, the defendant must have been aware of the strong likelihood that the plaintiff would
be seriously harmed, but consciously failed to take reasonable measures to prevent the harm from
occurring. Farmer v. Brennan, 511 U.S. 825, 837 & 843 n.8 (1994).
5.
The amended complaint [dkt. 6] does not allege that Officer Booker actually spit
on or placed a hair on Lanier’s food. Nor is there any allegation that Officer Booker knew or even
suspected that the food he delivered to Lanier had been tampered with. There is no plausible factual
basis to conclude that Officer Booker was aware that Lanier would be seriously harmed by the
sack lunch he delivered.
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6.
The Court can imagine scenarios in which additional factual allegations could cure
the deficiencies noted above. But this is not the standard. Rule 8 requires that the complaint
“actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to
relief above the speculative level.” Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin.
Servs., 536 F.3d 663, 668 (7th Cir. 2008) (quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1084
(7th Cir. 2008)). Nothing in this ruling prohibits the plaintiff from filing a motion to amend the
complaint consistent with Rule 15 of the Federal Rules of Civil Procedure.
7.
Lanier’s failure to respond to the motion to dismiss risked an adverse ruling.
Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1042 (7th Cir. 1999) (“If [judges] are given
plausible reasons for dismissing a complaint, they are not going to do the plaintiff's research and
try to discover whether there might be something to say against the defendants’ reasoning.”); see
also County of McHenry v. Ins. Co. of the West, 438 F.3d 813, 818 (7th Cir. 2006) (“When
presented with a motion to dismiss, the non-moving party must proffer some legal basis to support
his cause of action.”) (internal quotations omitted). That risk has become a reality.
In conclusion, defendant Officer Booker’s motion to dismiss [dkt. 23] is granted. The
clerk is directed to update the docket to reflect that Officer Booker is terminated as a defendant.
No partial final judgment shall issue at this time as to the claims resolved in this Entry.
IT IS SO ORDERED.
Date: 11/22/16
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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Distribution:
All Electronically Registered Counsel
HOLLIS LANIER
58577-060
LEE U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 305
JONESVILLE, VA 24263
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