United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. MILLER, JR. JUDGE
Walter Stokes, a prisoner without a lawyer housed at the
Westville Correctional Facility, sues Sgt. Flaraity, Ms. C.O.
Hart, Supervisor Sandleberg, Lt. Palmmaroy, Sgt. Franklin,
and Amber Vitkoc. A 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. 28 U.S.C. § 1915A. 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).
Stokes's allegations are, in large part, identical to
those of the amended complaint. Mr. Stokes alleges that he was
having trouble getting along with his cell mates but Lt.
Pallmaroy, Supervisor Sandleberg, and Caseworker Vitkoc
refused to move or otherwise help him. Eventually, he was
“put out” of his cell by a cell-mate. (ECF 32 at
5.) Mr. Stokes told Sgt. Franklin and Sgt. Flaraity what
happened, but they still wouldn't move him. Furthermore,
they made him tell his side of the story in front of other
offenders. He sought protective custody, but an unknown
lieutenant denied his request. Mr. Stokes refused to return
to his cell after the denial, and instead stayed in an empty
cell. That night, he was attacked. He received medical care
and was moved. His assailant was identified, but Supervisor
Sandleberg and Lt. Pallmaroy, in an effort to cover up the
incident, would not punish the individual responsible for the
assault. Shortly thereafter, a room full of roughly 100
offenders called Mr. Stokes a snitch and threatened him. Mr.
Stokes was moved again.
one inmate attacks another, the Eighth Amendment 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). The defendant “must both be aware of facts
from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference.” Farmer v. Brennan, 511 U.S. 825,
837 (1994). General requests for help and expressions of fear
are insufficient to alert guards to the need for action.
Klebanowski v. Sheahan, 540 F.3d 633, 639-640 (7th
Cir. 2008). By contrast, “a complaint that identifies a
specific, credible, and imminent risk of serious harm and
identifies the prospective assailant typically will support
an inference that the official to whom the complaint was
communicated had actual knowledge of the risk.”
Gevas v. McLaughlin, 798 F.3d 475, 481 (7th Cir.
2015). “Even if an official is found to have been aware
that the plaintiff was at substantial risk of serious injury,
he is free from liability if he responded to the situation in
a reasonable manner.” Fisher v. Lovejoy, 414
F.3d 659, 664 (7th Cir. 2005). Despite two opportunities to
clarify his complaint, Mr. Stokes hasn't identified a
specific, credible, imminent risk of harm that was
communicated to any of the defendants before the attack. The
complaint hasn't plausibly alleged facts from which it
can be inferred that any defendant was deliberately
indifferent to Mr. Stokes' safety before this attack.
Stokes had trouble with Officer Hart after he was moved.
According to Mr. Stokes, Officer Hart told an inmate that Mr.
Stokes had snitched on him, leading to a verbal confrontation
with the inmate in the shower. When Mr. Stokes confronted
Officer Hart, she called Mr. Stokes a snitch in front of
other inmates. Mere fear of an attack that doesn't occur
does not state a claim for monetary damages. See Doe v.
Welborn, 110 F.3d 520, 523-524 (7th Cir. 1997)
(“An allegation that prison officials exposed a
prisoner to a risk of violence at the hands of other inmates
does not implicate the Eighth Amendment's Cruel and
Unusual Punishments Clause.” (internal quotation marks
and citation omitted)). Mr. Stokes hasn't stated a claim
on which relief can be granted against Officer Hart for
deliberately indifferent to his safety based on the verbal
confrontation that occurred in the shower.
Stokes then filed a grievance against Officer Hart. Mr.
Stokes asserts that Officer Hart retaliated against him by
abruptly stopping him with her arm and demanding to see his
identification even though it was plainly visible. “To
prevail on his First Amendment retaliation claim, [Mr.
Stokes] 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). These allegations don't state a claim of
retaliation against Officer Hart because this isn't the
kind of deprivation that would deter future First Amendment
Stokes sought protective custody again and was moved, but he
still saw Officer Hart every day. Mr. Stokes believes that
Officer Hart had another officer write him up for taking too
long to pick up his legal mail, in retaliation for filing
grievance against her. Giving Mr. Stokes the inferences to
which he is entitled at this stage of the case, he has
sufficiently alleged that Officer Hart retaliated against him
for filing a grievance by directing another officer to file a
disciplinary complaint against him.
Stokes also alleges that Sgt. Hart and Sgt. Flaraity made him
clean black mold off the ceiling as a means of retaliating
against him, but it's unclear when this occurred in
relationship to the other events set forth in the complaint,
and Mr. Stokes hasn't alleged that he was required to
clean up black mold because he exercised his rights under the
First Amendment. Nor is this the kind of deprivation that
would deter future First Amendment activity. Mr. Stokes
won't be permitted to proceed on this claim.
extent that Mr. Stokes' second amended complaint seeks
his immediately release from prison, it has already been
explained to Mr. Stokes that relief is not available to him
in an action brought pursuant to 42 U.S.C. 1983. See Heck
v. Humphrey, 512 U.S. 477, 481 (1994) (“[H]abeas
corpus is the exclusive remedy for a state prisoner who
challenges the fact or duration of his confinement . .
..”). He now seeks what he describes as a lateral
transfer. “Prison officials have broad administrative
and discretionary authority over the institutions they
manage.” Westefer v. Neal, 682 F.3d 679 (7th
Cir. 2012) (quotation marks, brackets, and citations
omitted). Prison officials must afford inmates their
constitutional rights, but where to house an inmate is just
the type of decision that is squarely within the discretion
of prison officials. The facts presented here don't
warrant an intrusion upon that discretion.
Mr. Stokes has asked that all fees related to this lawsuit be
waived or at least suspended until after his release. Because
Mr. Stokes is a prisoner, he is subject to the requirements
of 28 U.S.C. § 1915(b) and must pay the entire filing
fee in accordance with the procedures set forth in that
statute. See 28 U.S.C. § 1915(b); Hains v.
Washington, 131 F.3d 1248, 1250 (7th Cir. 1997)
(“[T]he filing of a complaint (or appeal) is the act
that creates the obligation to pay fees, and what the judge
does later does not relieve a litigant of this
responsibility.”). A court doesn't have authority
to waive the fee or to modify the amount or timing of
payments. Lucien v. DeTella, 141 F.3d 773, 776 (7th
Cir. 1998); see also Newlin v. Helman, 123 F.3d 429,
436 (7th Cir. 1997). As to other expenses related to
litigating this case, Mr. Stokes isn't entitled to public
subsidy of the costs of litigating this case, even though he
is proceeding in forma pauperis. See Lindell v.
McCallum, 352 F.3d 1107, 1111 (7th Cir. 2003) (indigent
pro se prisoner had no “constitutional
entitlement to subsidy. . . to prosecute a civil
suit”); Lucien v. DeTella, 141 F.3d at 774
(“All § 1915 has ever done is excuse
pre-payment of the docket fees; a litigant remains
liable for them, and for other costs”) (emphasis in
these reasons, the court:
(1) GRANTS Samuel Walter Stokes leave to proceed against Ms.
C.O. Hart in her individual capacity for compensatory and
punitive damages for retaliating against him by directing
another officer to file a disciplinary complaint against him,
in violation of the First Amendment;
(2) DISMISSES all other claims;
(3) DISMISSES Sgt. Flaraity, Supervisor Sandleberg, Lt.
Palmmaroy, Sgt. Franklin, and Amber ...