United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
LOZANO, Judge United States District Court
Gillon, a pro se prisoner, filed a complaint under
42 U.S.C. § 1983. (DE 1.) Pursuant to 28 U.S.C. §
1915A, the court must review a prisoner complaint and dismiss
it if the action is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief.
Courts apply the same standard under Section 1915A as when
deciding a motion under Federal Rule of Civil Procedure
12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624
(7th Cir. 2006). To survive a motion to dismiss under Rule
12(b)(6), a complaint must state a claim for relief that is
plausible on its face. Bissessur v. Indiana Univ. Bd. of
Trs., 581 F.3d 599, 602-03 (7th Cir. 2009). “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.” Id. at 603. Furthermore, “[a]
document filed pro se is to be liberally construed,
and a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007). To state claim under 42
U.S.C. § 1983, a plaintiff must allege: “(1) that
defendants deprived him of a federal constitutional right;
and (2) that the defendants acted under color of state
law.” Savory v. Lyons, 469 F.3d 667, 670 (7th
is an inmate at the St. Joseph County Jail and complains that
during med pass on August 4, 2016, he asked the medical staff
for a Tylenol pill. Soon after Gillon received and ingested
the pill, the nurse came back to his cell and told him that
she mistakenly gave him someone else's medication. Gillon
alleges that he is now concerned that this may happen again
and is reluctant to use the medical facilities at the jail.
He brings suit for money damages against Assistant Warden and
Melinda Fisher based upon “emotional and psychological
distress” as well as “mental anguish.”
threshold matter, Gillon does not identify what either named
defendant did in connection with his claim. This is necessary
as “[a] plaintiff bringing a civil rights action must
prove that the defendant personally participated in or caused
the unconstitutional actions.” Grieveson v.
Anderson, 538 F.3d 763, 776 (7th Cir. 2008).
“[P]ublic employees are responsible for their own
misdeeds but not for anyone else's.” Burks v.
Raemisch, 555 F.3d 592, 596 (7th Cir. 2009). There is no
general respondeat superior liability under 42 U.S.C. §
1983. George v. Smith, 507 F.3d 605, 609 (7th Cir.
2007). That is to say, a supervisor is not responsible in a
federal civil rights lawsuit for the actions or omissions of
his employees. Because there is no indication that either
Assistant Warden Richmond or Melinda Fisher was personally
responsible for giving Gillon the wrong medication, he has
not stated a claim against them.
even if Gillon had named the individuals personally
responsible for providing him with the wrong medication, it
would still not be plausible to find that Gillon's
constitutional rights were violated. From the allegations of
the complaint, it is clear that the unidentified nurse
mistakenly gave Gillon the wrong medication. The nurse's
action could be deemed negligent under state law. However,
negligence does not establish a constitutional claim since
“the Eighth Amendment does not codify common law
torts.” Arnett v. Webster, 658 F.3d 742, 751
(7th Cir. 2011) (citation omitted).
Gillon alleges that being given the wrong medication has
caused him to suffer emotional distress. He does not allege
that he has directly suffered any physical injury as a result
of these events. Without actual injury caused by the
defendants' actions or omissions, Gillon can not
plausibly state a claim in federal court. See Walker v.
Peters, 233 F.3d 494, 502 (7th Cir. 2000).
No Federal civil action may be brought by a prisoner confined
in a jail, prison, or other correctional facility, for mental
or emotional injury suffered while in custody without a prior
showing of physical injury.
42 U.S.C. § 1997e(e).
explained, this complaint does not state a claim. Though it
does not appear that Gillon could state a claim even if he
filed an amended complaint, he will nevertheless be permitted
to do so. See Luevano v. Wal-Mart, 722 F.3d 1014
(7th Cir. 2013).
reasons set forth above, the Court:
DIRECTS the clerk to place this cause number on a blank
Prisoner Complaint 42 U.S.C. § 1983 form and sent it to
GRANTS Lorenzo Gillon to and including January 30, 2017, to
file an amended complaint; and
CAUTIONS him that if he does not respond by the deadline,
this case will be dismissed pursuant to 28 U.S.C. §
1915A because the current complaint does ...