United States District Court, N.D. Indiana, South Bend Division
CHARLES A. BENSON, Plaintiff,
MIAMI CORRECTIONAL FACILITY, et al., Defendants.
OPINION AND ORDER
L. MILLER, JR. JUDGE
A. Benson, a prisoner without a lawyer, filed an amended
complaint. “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).
Nevertheless, under 28 U.S.C. § 1915A, this court 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. “In order to state a 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 Cir. 2006).
amended complaint, Mr. Benson alleges that, on June 5, 2018,
Officer D. Petty pushed water under his cell door with a
squeegee and asked Mr. Benson if he intended to file another
grievance against him. Officer Petty also convinced two
correctional officers to fabricate disciplinary reports
charging Mr. Benson with splashing the water on them. Later
that day, Sergeant E. Parkin sprayed chemical agent on Mr.
Benson three times and left him in his cell for an hour
without decontamination because Mr. Benson insisted that he
follow departmental policy. Captain L. Barkas was the shift
supervisor, knew that Sergeant Parkin was spraying Mr.
Benson, but didn't intervene. Mr. Benson seeks money
damages and injunctive relief.
Benson asserts a claim of First Amendment retaliation against
Officer Petty for persuading other officers to fabricate
disciplinary reports in retaliation for a grievance.
“To prevail on his First Amendment retaliation claim,
[a plaintiff] must show that (1) he engaged in activity
protected by the First Amendment; (2) he suffered a
deprivation that would likely deter First Amendment activity
in the future; and (3) the First Amendment activity was at
least a motivating factor in the Defendants' decision to
take the retaliatory action.” Gomez v. Randle,
680 F.3d 859, 866 (7th Cir. 2012). The complaint states a
plausible claim of First Amendment retaliation against
Benson asserts an Eighth Amendment claim of excessive force
against Sergeant Parkin for spraying the chemical agent and
against Captain Barkas for not intervening. The “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). Several
factors guide the inquiry of whether an officer's use of
force was legitimate or malicious, including the need for an
application of force, the amount of force used, and the
extent of the injury suffered by the prisoner. Id.
“[O]fficers who have a realistic opportunity to step
forward and prevent a fellow officer from violating a
plaintiff's rights through the use of excessive force but
fail to do so could be held liable under § 1983.”
Fillmore v. Page, 358 F.3d 496, 505-506 (7th Cir.
2004). The complaint states plausible Eighth Amendment claims
of excessive force against Sergeant Parkin and Captain
Benson names the Miami Correctional Facility as a defendant
and also names the Warden William Hyatt as a defendant based
on supervisory liability. The facility isn't a proper
defendant here. It might be where these things happened, but
the facility is a building, not a person or even a
policy-making unit of government that can be sued under 42
U.S.C. § 1983. See Sow v. Fortville Police
Dep't, 636 F.3d 293, 300 (7th Cir. 2011).
Additionally, “[i]t is well established that there is
no respondeat superior liability under § 1983.”
Gayton v. McCoy, 593 F.3d 610, 622 (7th Cir. 2010).
Rather, “[l]iability depends on each defendant's
knowledge and actions, not on the knowledge or actions of
persons they supervise.” Burks v. Raemisch,
555 F.3d 592, 594 (7th Cir. 2009). Because the complaint
doesn't describe how Warden William Hyatt was personally
involved, this defendant is dismissed.
Mr. Benson seeks an order compelling the defendants to
install cameras in the restrictive housing unit at the Miami
Correctional Facility. “If a prisoner is transferred to
another prison, his request for injunctive relief against
officials of the first prison is moot unless he can
demonstrate that he is likely to be retransferred.”
Higgason v. Farley, 83 F.3d 807, 811 (7th Cir.
1996). Because Mr. Benson now resides at the Wabash Valley
Correctional Facility, his request for camera installation is
these reasons, the court:
GRANTS Charles A. Benson leave to proceed against Officer D.
Petty for retaliating by persuading other officers to falsify
disciplinary reports on June 5, 2018, in violation of the
GRANTS Charles A. Benson leave to proceed against Sergeant E.
Parkin and Captain L. Barkas on an Eighth Amendment claim of
excessive force for spraying him with chemical agent on June
DISMISSES Warden William Hyatt and the Miami Correctional
DISMISSES all other claims;
DIRECTS the clerk and the United States Marshals Service to
issue and serve process on Officer D. Petty, Sergeant E.
Parkin, and Captain L. Barkas at the Indiana Department of
Correction with a copy of this order and the amended
complaint (ECF 13) as required by 28 U.S.C. § 1915(d);
ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), Officer D.
Petty, Sergeant E. Parkin, and Captain L. Barkas to 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 Charles