United States District Court, S.D. Indiana, Indianapolis Division
JAMES F. GRIFFITH, Plaintiff,
A. DOWNEY CWM, F. BRANNICK C/O, KEVIN ALLEN Corr. Police Officer, D. HASKINS, FERNELL MCDONALD, STORM Investigator, LT. NICHOLSON Lt., YARBAR Lt., ROB MARSHALL, DEVINE SGT., E. DRADA Sgt., N. LYDAY Sgt., PHILLIPS Sgt., KEVIN HUNTER UTM, SULLIVAN COUNTY PROSECUTOR, Defendants.
ENTRY SCREENING COMPLAINT AND DIRECTING FURTHER
WALTON PRATT, JUDGE
Plaintiff's request to proceed in forma pauperis
[dkt. 4] is granted. The assessment of even
a partial filing fee is not feasible at this time.
Notwithstanding the foregoing ruling, the plaintiff owes the
filing fee. “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.”
Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.
plaintiff is a prisoner currently incarcerated at New Castle
Correctional Facility and the events that form the basis for
this civil action occurred at Wabash Valley Correctional
Facility. 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
[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).
the foregoing, the following excessive force claim shall
proceed. The plaintiff claims that defendants Brannick,
Drada, Yarber, Lyday, Haskins, Devine and Phillips used
excessive force when the plaintiff was handcuffed and sitting
down on the floor refusing to get up or to walk to F cell
house while at Wabash Valley Correctional Facility. These
defendants allegedly dragged the plaintiff to F cell house.
The defendants also carried him down the stairs and once they
were outside where no cameras were, body slammed the
handcuffed plaintiff, jumped on him and started beating on
him. This Eighth Amendment claim shall proceed.
other claims and defendants including A. Downey, Kevin Allen,
Fernell McDonald, Storm, Lt. Nicholson, Rob Marshall, Kevin
Hunter, and the Sullivan County Prosecutor are dismissed. The
clerk is directed to terminate these defendants on the
docket. The claims against these defendants are dismissed for
the following reasons.
there can be no recovery for a failure to protect claim where
the plaintiff was not harmed by his placement in segregation
and later in F cell house and where there is no claim that he
is in continuing danger. Damages for “a deliberate
indifference claim cannot be predicated merely on knowledge
of general risks of violence, ” Weiss v.
Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000), or fear of
an unrealized attack, see Babcock v. White, 102 F.3d
267, 270 (7th Cir. 1996).
the complaint alleges that Offender Worden has been charged
with the attempted murder of Offender Ricky Russell. Offender
Worden and the plaintiff were cell mates. The plaintiff
explains that naming him as a State's witness in the
criminal case against Offender Worden was wrong because he
has no knowledge of the incident and is not cooperating with
the State in the prosecution of Offender Worden. However, the
complaint alleges that the plaintiff was listed as a witness
because the victim, Offender Russell, reported that the
plaintiff was one of the offenders who attacked him. Further
investigation proved this allegation to be false. Under these
circumstances, it cannot be unconstitutional for the
prosecutor to name the plaintiff as a witness and the
Department of Correction defendants cannot be liable for how
the prosecutor litigated the criminal case. The
Plaintiff's name appeared on the State's witness list
because of statements made by Offender Russell. This factual
allegation is insufficient to create liability on the part of
the claim that Nicholson and Marshal tried to cover up the
seriousness of the excessive force used on the plaintiff also
fails to state a claim. The allegations against these
defendants do not suggest a plausible basis for concluding
that they caused or participated in the alleged
constitutional deprivation. See Wolf-Lillie v.
Sonquist, 699 F.2d 864, 869 (7th Cir. 1983); Johnson
v. Snyder, 444 F.3d 579, 583-84 (7th Cir. 2006). Merely
acting or not acting on the plaintiffs complaints did not
cause the underlying denial of rights the plaintiff alleges.
To allow liability to be based upon “such a broad
theory. . . [would be] inconsistent with the personal
responsibility requirement for assessing damages against
public officials in a § 1983 action.” Crowder
v. Lash, 687 F.2d 996, 1006 (7th Cir. 1982); Vance
v. Rumsfeld, 701 F.3d 193, 204, 2012 WL 5416500, 10 (7th
Cir. 2012) (knowledge of subordinates' misconduct is not
enough for liability); George v. Smith, 507 F.3d
605, 609 ((7th Cir. Cir. 2007)(“Only persons who cause
or participate in the violations are responsible”; an
official “who rejects an administrative complaint about
a completed act of misconduct does not [cause or contribute
to the violation]”).
plaintiff believes that additional claims were alleged in the
complaint, but not identified by the Court he shall have
through March ...