United States District Court, Southern District of Indiana, Terre Haute Division
ENTRY DISCUSSING DEFENDANT’S MOTION TO DISMISS AND PLAINTIFF’S MOTION TO AMEND AND DIRECTING FURTHER PROCEEDINGS
Jane Magnus-Stinson, Judge
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
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.
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 ...