United States District Court, N.D. Indiana, South Bend Division
BARRY W. MATLOCK, Plaintiff,
v.
PORTER, et al., Defendants.
OPINION AND ORDER
JON E.
DEGUILIO JUDGE
Barry
W. Matlock, a prisoner without a lawyer, filed a motion (ECF
48) seeking leave to amend his complaint a third time. The
proposed third amended complaint seeks to add additional
claims and defendants. As with his earlier complaints,
Matlock alleges that Sgt. Porter[1] made racially derogatory
comments, he complained about Sgt. Porter's behavior, and
he was retaliated against for making complaints and filing
this lawsuit by various other members of the staff at
Westville Correctional Facility. The motion will be granted,
and the clerk will be instructed to file the third amended
complaint.
A
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.
In his
third amended complaint, Matlock again alleges that Sgt.
Porter made racially derogatory comments to him, and he
complained about her conduct. Under the Eighth Amendment,
prisoners cannot be subjected to cruel and unusual
punishment. See Farmer v. Brennan, 511 U.S. 825,
833-34 (1994). “An Eighth Amendment claim based on the
infliction of psychological pain on an inmate requires (1)
objectively, sufficiently serious misconduct, and, (2)
subjectively, an intent to wantonly inflict psychological
pain for no legitimate purpose.” Snow v. List,
No. 11-CV-3411, 2014 WL 1515613 * 1 (C.D. Ill. April 17,
2014)(citing Calhoun v. DeTella, 319 F.3d 936, 939
(7th Cir. 2003)). Standing alone, “[t]he use of
derogatory language, while unprofessional and deplorable,
” is not serious enough to violate the Constitution.
DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000).
While indeed offensive behavior, Sgt. Porter's derogatory
comments do not, by themselves, implicate the Eighth
Amendment, and Matlock will not be permitted to proceed on
this claim.
After
Matlock filed complaints about Sgt. Porter's behavior,
Mr. Sonnenberg moved Matlock from his two-man cell to a
four-man cell. Matlock found this distressing because he
suffers from Post-Traumatic Stress Disorder and this transfer
was contrary to the recommendation of a mental health worker
that he not be placed in a cell with more than one other
individual. Furthermore, Mr. Sonnenberg, Warden Sevier, and
Rob Wright had him removed from his job with Pen Products.
Additionally, Wright wrote Matlock up for refusing a work
assignment even though he explained that his refusal was
based on threats to harm him by the Vice Lords if he did show
up for work. He believes these actions were motivated by
retaliation for complaining about Sgt. Porter. “To
prevail on his First Amendment retaliation claim, [Matlock]
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) (quotation marks and citations omitted).
Here, while Matlock's allegations are sparse, he will be
permitted to proceed on his retaliation claims against Mr.
Sonnenberg, Warden Sevier, and Rob Wright in their individual
capacities for nominal, compensatory, and punitive damages,
and in their official capacities for injunctive relief.
Matlock
also alleges that several defendants threatened him because
he complained about Sgt. Porter. The following allegations
are nearly identical to those in his earlier complaints. On
November 7, 2018, Sgt. Franklin told Matlock that he heard
that Matlock was messing with his friend Sgt. Porter, that he
did not like for people to mess with his friends, and that
“Westville can be a dangerous place and bad things can
happen to people like Matlock.” (ECF 48-1 at 3-4.) On
November 10, 2018, Sgt. Flakes referenced the complaint
Matlock filed against Sgt. Porter and indicated that she
“has friends who are Vice Lords and they know how to
deal with people like Matlock.” (Id. at 4.) On
November 14, 2018, Sgt. Motshagen[2] indicated that she heard
that Matlock was causing trouble by filing complaints against
staff, and she indicated that “it would be a shame if
Matlock needed help” and Sgt. Motshagen or other staff
turned their backs and “let harm come to
Matlock.” (Id.) On November 17, 2018, Lt.
Yancey reminded Matlock of a brutal attack on inmates at
Indiana State Prison, and he said, “that's what
happens to inmates who mess with his brothers and sisters in
blue.” (Id.) On November 26, 2018, Sgt.
Collier indicated that he “would make Matlock pay
dearly” if he did not stop messing with Sgt. Porter.
(Id.) He further indicated that he has family that
are Vice Lords, and “he could and would put them on
Matlock.” (Id. at 5.) These allegations state
a claim of retaliation against Sgt. Collier, Sgt. Flakes, Lt.
Yancey, Sgt. Motshagen, and Sgt. Franklin. Therefore, he will
be permitted to proceed against these defendants in their
individual capacities for nominal, compensatory, and punitive
damages and in their official capacities for injunctive
relief.
Matlock
also alleges that Sgt. Porter has been directly involved in
the retaliation against him. On February 26, 2019, Sgt.
Porter directed other officers to shake down Matlock's
cell, then asked him how he liked the shake down and told him
that “it ain't over white boy” and that there
is more to come. (Id. at 6.) On March 3, 2019, Sgt.
Porter told Matlock to watch his cell because “it would
be hell if a weapon or drugs were found [there].”
(Id.) On March 7, 2019, Sgt. Porter again threatened
to have Matlock's cell shook down. And, Sgt. Porter told
Matlock that he was lucky he did not make it to commissary
“as it would've been a shame had he been
robbed” because Sgt. Porter would'nt [sic] have
seen a thing.” (Id.) She tried to involve
other prisoners in her dispute with Matlock on more than one
occasion (although it is unclear if she was successful). Sgt.
Porter told another officer not to hang around Matlock
because, if he did, he would find an enemy in her. On March
16, 2019, several inmates complained about small portions on
their lunch trays, including Matlock. Sgt. Porter provided a
second lunch sack to each inmate that had complained - except
Matlock. When Matlock asked Sgt. Porter for a sack, she said,
“me give you a sack[. R]eally get real.”
(Id. at 7.) While some of the alleged deprivations
that Matlock suffered are not sufficiently serious to state a
claim, together they suggest retaliatory motive. And, both
threats of disciplinary complaints that could lengthen
Matlock's confinement and the risks associated with
inciting other prisoners to participate in her campaign
against Matlock are enough to deter future First Amendment
activity in a person of reasonable firmness. Matlock has
stated a claim of retaliation against Sgt. Porter, and
Matlock will be permitted to proceed against her in her
individual capacity for nominal, compensatory, and punitive
damages and in her official capacity for injunctive relief.
However, for the reasons explained in this court's
earlier screening order (ECF 39), Sgt. Porter's actions
are not sufficiently severe to implicate the Eighth Amendment
Matlock
also alleges that Warden Sevier retaliated against him by
conspiring with Patrick Krueger to deny Matlock's request
for a hardship transfer. On February 15, 2019, Caseworker
Shawna Brown told Matlock that she would submit a hardship
transfer for Matlock, but that he should not get his hopes up
because Warden Sevier was going to have Patrick Krueger deny
the motion to “piss Matlock off” because he had
filed grievances, lawsuits, and a complaint under the Prison
Rape Elimination Act. (ECF 48-1 at 7.) Krueger denied the
request on March 5, 2019. These allegations state a claim of
retaliation against Warden Sevier and Patrick Krueger, and
Matlock will be permitted to proceed against them in their
individual capacities for nominal, compensatory, and punitive
damages and in their official capacities for injunctive
relief.
Following
the denial of his hardship transfer, on April 16, 2019,
Matlock was threatened by Hoskins, an inmate serving as a
dorm representative. Hoskins had a homemade weapon that
appeared to be razor blades attached to a toothbrush. Hoskins
threatened to slit Matlock's throat if he “kept up
his bullshit causing trouble with staff making it hot on the
dorm and such.” (Id. at 7-8.) Matlock told
Sgt. Deu about the threat, and Sgt. Deu said he would take
care of it. A couple of hours later, Matlock approached Sgt.
Deu again and was again told that he would take care of it.
Matlock followed up with Sgt. Deu an hour later and Sgt. Deu
indicated that he would shake down Hoskins' cell. Matlock
also told Officer Vallarie about the threat and the weapon.
Officer Vallarie shook down Hoskins' cell and found the
weapon. Even though protocol is that, when someone is found
to have a weapon, they go to lockup, Hoskins was left in the
dorm. The next day, Hoskins asked Matlock if he told on him,
and then proceeded to tell staff that Matlock must have
planted the weapon on him. The following day, April 18, 2019,
Matlock and Hoskins had multiple verbal altercations. That
night, Matlock was awoken to Hoskins and another offender
that claimed to be a high-ranking member of the Dirty White
Boys' gang. Hoskins and the other offender then told
Matlock word-for-word what he had told Officer Vallarie. They
indicated that Officer Vallarie had told a group of black
prisoners and eight members of the Dirty White Boys that
Matlock reported that Hoskins had a weapon. Matlock was told
that he had to leave the dorm or he would be beaten daily
because Matlock had snitched on a high-ranking member of the
Dirty White Boys. Matlock was beaten on the head, arms, ribs
and legs, but the assailants deliberately avoided leaving
marks on his face. Matlock's ear was bleeding, and his
ribs hurt. He was told to go to his cell and, in the morning,
to leave the dorm. Matlock was told not to say anything about
the Dirty White Boys or Officer Vallarie or he might go to
chow and leave in an ambulance or a hearse. For
clarification, it appears that this alleged altercation is
unrelated to Matlock's past issues with members of the
Vice Lord gang.
The
Eighth Amendment imposes a duty on prison officials “to
take reasonable measures to guarantee the safety of
inmates.” Farmer v. Brennan, 511 U.S. 825, 832
(1994). “[P]rison officials have a duty to protect
prisoners from violence at the hands of other
prisoners.” Id. at 833. “[I]n order to
state a section 1983 claim against prison officials for
failure to protect, [a plaintiff] must establish: (1) that he
was incarcerated under conditions posing a substantial risk
of serious harm and (2) that the defendants acted with
deliberate indifference to his health or safety. Santiago
v. Walls, 599 F.3d 749, 756 (7th Cir. 2010). The
complaint states a plausible Eighth Amendment claim for
failure to protect against Sgt. Deu and Officer Vallarie in
their individual capacities.
Matlock
believes that Sgt. Deu took no action because he is
Porter's friend and Matlock had filed complaints about
Porter. While these allegations are sparse, Matlock will be
permitted to proceed on a retaliation claim against Sgt. Deu
in his individual capacities for nominal, compensatory, and
punitive damages, and in his official capacity for injunctive
relief.
In the
morning, Matlock found Sgt. Deu, who asked if the weapon and
been reported to anyone else and if it had been removed.
Matlock told Sgt. Deu what occurred the night before. He told
Matlock to return to his cell and Sgt. Deu would call Matlock
out. About 45 minutes later, Sgt. Deu called Matlock to the
squad room and took pictures. He asked Matlock if he wanted
medical attention. Matlock indicated that he did, and he
filled out a request for protective custody. Matlock was sent
to urgent care for treatment, but he was denied treatment and
sent back to the squad room.[3] He was assigned to a new doom -
this was an “open dorm” and Matlock believes the
housing arrangement conflicts with the prior recommendation
of a mental health worker that he be placed in a two-man
cell. A group of officers, including Lt. Holleran, Sgt.
Espisito, and Sgt. Deu surrounded Matlock. Lt. Holleran aimed
a can of pepper spray at Matlock's face. When he looked
around for cameras, Lt. Holleran and Sgt. Espisito laughed
and indicated that there were no cameras in the area. Sgt.
Espisito threw Matlock against the wall and yelled that
Matlock “would do what the fuck he was told and he
would go where the fuck they told him and live where the fuck
they said or they would put him in cuffs and drag his ass to
eight dorm dayroom and tell them that Matlock was a
[illegible] snitch ass check in.” (Id. at 11.)
Matlock expressed concern about members of the Dirty White
Boys in the new dorm, but he was told that there were no
members of that gang in the new dorm and that he was going to
the dorm one way or another. 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) (citation
omitted). 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. Additional fact finding may
demonstrate that force was used against Matlock in a
good-faith effort to maintain or restore discipline, but
giving Matlock the inferences to which he is entitled at this
stage of the case, he has stated a claim of excessive force
against Sgt. Espisito based on the April 19, 2019, incident.
Matlock
does not allege that Lt. Holleran or Sgt. Deu used excessive
force, but he may be alleging that they failed to intervene.
State actors “who have a realistic opportunity to step
forward and prevent a fellow [state actor] from violating a
plaintiff's right through the use of excessive force but
fail to do so” may be held liable. Miller v.
Smith, 220 F.3d 491, 495 (7th Cir.2000) (citing Yang
v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). Here, it
can be plausibly inferred that Lt. Holleran and Sgt. Deu were
present for the entire altercation between Matlock and
Officer Espisito, but the incident described was so brief
that it cannot be plausibly interred that it lasted
sufficiently long for either officer to have an opportunity
to take action to stop the attack. Therefore, Matlock has not
stated a claim for failure to intervene against Lt. Holleran
or Sgt. Deu.
In the
course of the transfer, several items belonging to Matlock
were stolen. Matlock alleges that Officer Harvest allowed the
theft. Officer Harvest is not named as a defendant in the
third amended complaint, but even if he were, Matlock could
not proceed on a claim based on the theft. Though the
Fourteenth Amendment provides that state officials shall not
“deprive any person of life, liberty, or property,
without due process of law, ” a state tort claims act
that provides a method by which a person can seek
reimbursement for the negligent loss or intentional
deprivation of property meets the requirements of the due
process clause by providing due process of law. Hudson v.
Palmer, 468 U.S. 517, 533 (1984) (“For
intentional, as for negligent deprivations of property by
state employees, the state's action is not complete until
and unless it provides or refuses to provide a suitable post
deprivation remedy.”). Indiana's tort claims act
(Indiana Code § 34-13-3-1 et seq.) and other
laws provide for state judicial review of property losses
caused by government employees, and they provide an adequate
post-deprivation remedy to redress state officials'
...