United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge
Phillip Gerber, II, a prisoner without a lawyer, filed a
complaint against 17 defendants. “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)
(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.
Gerber is a pretrial detainee in the Elkhart County Jail.
“In evaluating the constitutionality of conditions or
restrictions of pretrial detention . . . the proper inquiry
is whether those conditions amount to punishment of the
detainee.” Bell v. Wolfish, 441 U.S. 520, 535
(1979). In Kingsley v. Hendrickson, 576 U.S. __, __;
135 S.Ct. 2466 (2015), the United States Supreme Court
explained “in the absence of an expressed intent to
punish, a pretrial detainee can nevertheless prevail by
showing that the actions are not ‘rationally related to
a legitimate nonpunitive governmental purpose' or that
the actions ‘appear excessive in relation to that
purpose.'” 135 S.Ct. at 2473 (quoting Bell v.
Gerber alleges he was held in segregation from August 9,
2018, to August 13, 2018, without a due process hearing while
he was being reclassified. A pretrial detainee, can't be
punished without due process of law. Bell v.
Wolfish, 441 U.S. 520. “But no process is required
if he is placed in segregation not as punishment but for
managerial reasons.” Higgs v. Carver, 286 F.3d
437, 438 (7th Cir. 2002). Mr. Gerber was held in segregation
over the weekend while he was being reclassified and
wasn't entitled to due process. He alleges he was denied
access to a shower or exercise while he was in segregation.
The denial of these for less than a week does not state a
claim. See Jaros v. Illinois Dep't of Corr., 684
F.3d 667, 671 (7th Cir. 2012) and Delaney v.
DeTella, 256 F.3d 679, 687 (7th Cir. 2001). He also
alleges that for almost 48 hours while he was in segregation,
the running water in his cell was shut off as punishment.
This allegation would state a claim if he had identified who
was punishing him and why. But without a named defendant,
these allegations don't state a claim on which relief can
Gerber alleges the Officers Dietz and Weaver punished him
because he refused to carry a tray of feces into his cell on
August 12, 2018. He doesn't say how he was punished. He
has identified who punished him, but not how. Without more,
these allegations don't state a claim on which relief can
Gerber alleges that on August 21, 2018, Officers Moore,
Oswalt, Huddleston, Cominator, Green, and Cornell kept him in
a cell with blood on the floor, the door, and the cuff port
through which all his meals were passed that day. Though
there might be legitimate reasons why their decisions to do
so were rationally related to a legitimate nonpunitive
governmental purpose, the complaint plausibly states a claim
against these six defendants.
Gerber alleges that over the course of two weeks, each of his
food trays and drinking cups were set on a table with blood
on it. Again, he doesn't say who did this or whether the
food or even the containers were contaminated as a result.
These allegations don't state a claim upon which relief
can be granted.
Gerber alleges Officer Loucks and Sgt. Simkins punished him
on September 6, 2018, by putting him in a padded cell without
a mat, blanket, or running water. He alleges Officers
Huddleston, Oswalt, Eddy, and Cornell forced him to remain in
the cell which was contaminated with hair, blood, and other
bodily fluids. Though there might be legitimate reasons why
these actions were rationally related to a legitimate
nonpunitive governmental purpose, the complaint plausibly
states a claim against these six defendants. The complaint
further alleges that Officers Hopkins, Starr, Jankowski,
Dietz, and Weaver refused to turn the water on in the cell,
but it doesn't allege Mr. Gerber was denied adequate
drinking water on September 6, 2018, and the mere lack of
running water in a cell does not state a claim. See Gray
v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016) (“To
date, we have recognized Eighth Amendment violations where
prisoners are deprived of cleaning supplies and running water
only in extreme circumstances.”).
complaint names three other defendants, but makes no
allegations about them. Two of the defendants, Sheriff Brad
Rodgers and Warden Dan Edwards, are supervisors, but there is
no general respondeat superior liability under 42 U.S.C.
§ 1983. “Only persons who cause or participate in
the violations are responsible.” George v.
Smith, 507 F.3d 605, 609 (7th Cir. 2007).
“[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). The third
defendant, Elkhart County Correctional Facility, is a
building. It is not a suable entity. Smith v. Knox County
Jail, 666 F.3d 1037, 1040 (7th Cir. 2012). The complaint
doesn't state a claim on which relief can be granted
against these three defendants.
Gerber also submitted a proposed order asking the court to
set a preliminary injunction hearing. He didn't file a
motion for a preliminary injunction, the proposed order makes
clear he wants an injunction preventing the defendants from
placing him in segregation without due process, from telling
him he could lose earned credit time for filing grievances,
and from searching him without cause.
preliminary injunction is an extraordinary and drastic
remedy, one that should not be granted unless the movant, by
a clear showing, carries the burden of persuasion.”
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). To
obtain a preliminary injunction, the moving party must show
(1) he will suffer irreparable harm before the final
resolution of his claims; (2) available remedies at law are
inadequate; and (3) he has a likelihood of success on the
merits. See BBL, Inc. v. City of Angola, 809 F.3d
317, 323-24 (7th Cir. 2015). The court then “weighs the
competing harms to the parties if an injunction is granted or
denied and also considers the public interest.”
Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir.
is no basis for enjoining the defendants from placing Mr.
Gerber in segregation without due process because there might
be legitimate reasons for them to do so. See Higgs v.
Carver, 286 F.3d 437, 438 (7th Cir. 2002). To the extent
the defendants might act without legitimate reasons, there
are adequate remedies at law. Neither is there any basis for
enjoining the defendants from telling him he could lose
earned credit time for filing grievances because he can
legitimately lose earned credit time for filing frivolous or
harassing grievances. See Douglas v. Finnan, 342
Fed.Appx. 198, 199 (7th Cir. 2009). Moreover, merely telling
him he could lose time, even if it were untrue, would not
qualify as irreparable harm. Finally, there is no basis for
enjoining the defendants from searching him without cause
because “the Fourth Amendment proscription against
unreasonable searches does not apply within the confines of
the prison cell.” Hudson v. Palmer, 468 U.S.
517, 526 (1984).
these reasons, the court:
(1) GRANTS Joseph Phillip Gerber, II, leave to proceed
against Officers Moore, Oswalt, Huddleston, Cominator, Green,
and Cornell for holding him in a cell contaminated with blood
on August ...