United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON, JUDGE UNITED STATES DISTRICT COURT.
Allen Deck, a prisoner without a lawyer, filed an amended
complaint against Governor Eric Holcomb, Commissioner Robert
Carter, Officer Brandon Mosley, and the Indiana Department of
Correction. Pursuant to 28 U.S.C. § 1915A, I must review
the complaint and dismiss it if the action is frivolous or
malicious, fails to state a claim, or seeks monetary relief
against a defendant who is immune from such relief. 28 U.S.C.
§ 1915A(a), (b). Courts apply the same standard under
Section 1915A as when addressing a motion under Federal Rule
of Civil Procedure 12(b)(6). Lagerstrom v. Kingston,
463 F.3d 621, 624 (7th Cir. 2006).
survive dismissal, 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. Thus, a
“plaintiff must do better than putting a few words on
paper that, in the hands of an imaginative reader,
might suggest that something has happened to her
that might be redressed by the law.”
Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th
Cir.2010) (emphasis in original). Nevertheless, “[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).
amended complaint alleges essentially the same facts as his
initial complaint. On December 29, 2016, while Deck was
housed at Miami Correctional Facility, he was attacked by six
inmates and suffered serious injuries. Deck alleges that
Officer Mosley watched, but he did not call a signal to stop
the attack or otherwise help him. When an inmate is attacked
by another inmate, the Constitution is violated only if
“deliberate indifference by prison officials
effectively condones the attack by allowing it to
happen.” Haley v. Gross, 86 F.3d 630, 640 (7th
Cir. 1996). And, “A prison guard, acting alone, is not
required to take the unreasonable risk of attempting to break
up a fight between two inmates when the circumstances make it
clear that such action would put her in significant
jeopardy.” Shields v. Dart, 664 F.3d 178, 181
(7th Cir. 2011)(quoting Guzman v. Sheahan, 495 F.3d
852, 858 (7th Cir. 2007) and Peate v. McCann, 294
F.3d 879, 883 (7th Cir. 2002)). Officer Mosley had no
obligation to physically intervene in the attack, but it can
plausibly be inferred from the complaint that Officer Mosley
took no action whatsoever. Therefore, taking the inferences
in the light most favorable to Deck, he has stated a claim
for failure to intervene.
the amended complaint names the Indiana Department of
Correction as a defendant, but the IDOC is a State agency and
is immune from suit pursuant to the Eleventh Amendment.
Wynn v. Southward, 251 F.3d 588, 592 (7th Cir.
2001). There are three exceptions to Eleventh Amendment
immunity: (1) suits directly against the State based on a
cause of action where Congress has abrogated the state's
immunity from suit; (2) suits directly against the State if
the State waived its sovereign immunity; and (3) suits
against a State official seeking prospective equitable relief
for ongoing violations of federal law. MCI
Telecommunications Corp. v. Ill. Commerce Comm'n,
183 F.3d 558, 563 (7th Cir. 1999). These exceptions do not
apply here, so I cannot permit Deck to pursue his claim
against the IDOC.
amended complaint also adds Governor Holcomb and Commissioner
Carter, but Deck does not allege that either Governor Holcomb
or Commissioner Carter were personally involved in the
incident. Rather, Deck believes that, as supervisors, they
should be liable too. However, there is no general
respondeat superior liability under 42 U.S.C. §
1983, and neither Governor Holcomb nor Commissioner Carter
can be held liable simply because the oversee operations at
the prison or supervises other correctional officers. See
Burks v. Raemisch, 555 F.3d 592, 594 (7th Cir. 2009).
Therefore, I must dismiss Governor Holcomb and Commissioner
these reasons, the court:
(1) GRANTS Rick Allen Deck leave to proceed against Officer
Mosley in his individual capacity on an Eighth Amendment
claim that Officer Mosley was deliberately indifferent to
Deck's safety when he failed to intervene in an inmate
altercation that occurred on December 29, 2016;
(2) DISMISSES all other claims;
(3) DISMISSES Governor Holcomb, Commissioner Carter, and
Indiana Department of Correction;
(4) DIRECTS the clerk and the United States Marshals Service,
to issue and serve process on Officer Mosley at the Indiana
Department of Correction with a copy of this order and the
complaint as required by 28 U.S.C. §
(5) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that
Officer Mosley respond, as provided for in the Federal Rules
of Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the
claims for which the plaintiff has been ...