United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON JUDGE UNITED STATES DISTRICT COURT
Laich, III, a prisoner without an attorney, filed this case
in the Miami Circuit Court under cause number
52C01-1708-CT-316. The defendants removed it because it
contained federal claims. When I screened the complaint
pursuant to 28 U.S.C. § 1915A, I found that it did not
state a claim, but granted Laich leave to file an amended
complaint which he has now done.
filing by an unrepresented party “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) (quotation marks and
citations omitted). Nevertheless, pursuant to 28 U.S.C.
§ 1915A, the court must review the merits of 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.
is an inmate at the Miami Correctional Facility. He alleges
he was the victim of an excessive use of force on March 10,
2017. The emergency weapons team entered his housing unit
around 6:10 a.m. in response to an inmate fight. All inmates
were ordered to return to their cells, so he went to his cell
and closed the door. Shortly thereafter, all cell doors in
the unit were electronically opened so other inmates (who had
not yet done so) could enter their cells. In response, Laich
went to his door because he wanted to close it. While at the
door, Sgt. Trevor Heishman shot him in the head with a
gas-powered wooden projectile after being ordered to shoot by
Sgt. Tim Dice.
“core requirement” for an excessive force claim
is that the defendant “used force not in a good-faith
effort to maintain or restore discipline, but maliciously and
sadistically to cause harm.” Hendrickson v.
Cooper, 589 F.3d 887, 890 (7th Cir. 2009) (internal
citation omitted). “[T]he question whether the measure
taken inflicted unnecessary and wanton pain and suffering
ultimately turns on whether force was applied in a good faith
effort to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.”
Whitley v. Albers, 475 U.S. 312, 320-21 (1986)
(quotation marks and citation omitted). Here, Laich has
plausibly alleged that Sgt. Heishman and Sgt. Dice inflicted
cruel and unusual punishment on him in violation of the
Eighth Amendment by acting maliciously and sadistically, in
bad faith for no legitimate purpose.
he does not have a State law claim for negligence because if
their actions were merely negligent, they would have been
acting within the scope of their employment. “Under the
Indiana Tort Claims Act, there is no remedy against the
individual employee so long as he was acting within the scope
of his employment.” Ball v. City of
Indianapolis, 760 F.3d 636, 645 (7th Cir. 2014).
Instead, his negligence claim is against the Indiana
Department of Correction on the claim raised in the Indiana
Attorney General Tort Claim File Number 17-06871.
alleges Sgt. Heishman and Sgt. Dice were not properly
trained. However, “[a]n allegation of a ‘failure
to train' is available only [where] the policymakers had
acquiesced in a pattern of constitutional violations.”
Cornfield v. Consolidated High School Dist. No. 230,
991 F.2d 1316, 1327 (7th Cir. 1993). Here, the complaint does
not mention any such pattern so it does not state a claim for
failure to train.
alleges that several individual supervisors are liable for
not properly supervising Sgt. Heishman and Sgt. Dice.
However, “public employees are responsible for their
own misdeeds but not for anyone else's.” Burks
v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009). The
doctrine of respondeat superior, which allows an employer to
be held liable for subordinates' actions in some types of
cases, has no application to § 1983 actions. Moore
v. State of Indiana, 999 F.2d 1125, 1129 (7th Cir.
1993). Neither is respondeat superior applicable to the State
law claims because “[u]nder the doctrine of
respondeat superior, an employer [not an
individual supervisor] is vicariously liable for the
wrongful or tortious acts of its employees that were
committed within the course and scope of their
employment.” Hansen v. Bd. of Trustees of Hamilton
Se. Sch. Corp., 551 F.3d 599, 612 (7th Cir. 2008).
Therefore, Laich's State law claim is limited to the one
against the Indiana Department of Correction which was raised
in the Indiana Attorney General Tort Claim File Number
alleges that after he was shot, he was falsely charged with
refusing to secure in his cell and that several defendants
wrote false witness statements in support of the false
conduct report. However, “an allegation that a prison
guard planted false evidence which implicates an inmate in a
disciplinary infraction fails to state a claim for which
relief can be granted where the procedural due process
protections as required in Wolff v. McDonnell are
provided.” Hanrahan v. Lane, 747 F.2d 1137,
1141 (7th Cir. 1983). “[P]risoners are entitled to be
free from arbitrary actions of prison officials, but . . .
even assuming fraudulent conduct on the part of prison
officials, the protection from such arbitrary action is found
in the procedures mandated by due process.”
McPherson v. McBride, 188 F.3d 784, 787 (7th Cir.
1999). Here, Laich was given a hearing and pleaded guilty to
interfering with staff in violation of C-364. However,
because he was not punished with the loss of earned credit
time, he has not alleged facts indicating that he was
entitled to due process before he was placed in segregation
for 11 days and denied commissary for 15 days. See Sandin
v. Conner, 515 U.S. 472, 484 (1995) (Due process is only
required when the punishment extends the duration of
confinement or imposes “an atypical and significant
hardship on him in relation to the ordinary incidents of
prison life.”) and Gillis v. Litscher, 468
F.3d 488, 492 (7th Cir. 2006) (Short term placements in
segregation are not an atypical and significant hardship.).
Therefore these allegations do not state a claim.
further alleges the false conduct report was written in
retaliation to cover up the improper use of force and for his
having requested medical treatment after he was shot in the
head. “To establish a First Amendment retaliation
claim, the plaintiff must establish that he engaged in
protected First Amendment activity, suffered a deprivation
that would likely deter future First Amendment activity, and
the First Amendment activity was a motivating factor in the
defendant's decision to take the retaliatory
action.” Walker v. Groot, 867 F.3d 799, 803
(7th Cir. 2017). It may be the conduct report was written to
falsely justify an improper use of force, but such a
motivation would not be in response to a protected First
Amendment activity, therefore it would not state a claim. To
the extent that his request for medical treatment is a
protected activity, “for retaliation for filing
petitions to be actionable, the means of retaliation must be
sufficiently clear and emphatic to deter a person of
‘ordinary firmness' from submitting such petitions
in the future.” Hughes v. Scott, 816 F.3d 955,
956 (7th Cir. 2016). Here, the complaint does not allege a
plausible link between the medical request and the conduct
report. Moreover, it is not reasonable to believe that a
conduct report would deter a prisoner from seeking medical
treatment for a serious injury after being shot in the head.
Additionally, Laich pleaded guilty and “the
disciplinary board found him guilty of . . . the charge,
demonstrating that some legitimate reason existed to support
the disciplinary ticket. “See Mays v.
Springborn, 719 F.3d 631, 634 (7th Cir. 2013)
(defendants in a retaliation claim can prevail if they show
it was ‘more likely than not' that the events would
have taken place even if there had been no retaliatory
motive).” Pegues v. Scott, 675 Fed.Appx. 621,
624 (7th Cir. 2017). Therefore the allegation of retaliation
does not state a claim.
Laich filed a motion for summary judgment. Based on his
complaint he has stated several claims. But the defendants
have not yet responded. Laich has not yet proven anyone is
financially liable to him. Therefore I must deny the motion.
GRANTS Joseph Laich, III, leave to proceed against Sgt.
Trevor Heishman and Sgt. Tim Dice in their individual
capacities for compensatory damages for shooting him in the
head with a gas-powered wooden projectile on March 10, 2017,
in violation of the Eighth Amendment;
GRANTS Joseph Laich, III, leave to proceed against the
Indiana Department of Correction for compensatory damages on
the State law claim raised in the Indiana ...