United States District Court, N.D. Indiana, South Bend Division
JASON D. PENNINGER, Plaintiff,
INDIANA DEPT OF CORRECTIONS, JOHN DOE, J. RODRIGUEZ, ABBASSI, BLAKELY, WATSON, and DOE, Defendants.
OPINION AND ORDER
R. Leichty, Judge.
Jason D. Penninger, a prisoner without a lawyer, alleges that
on April 7, 2017 he “was exposed to thick black and
toxic smoke in the prison cell house he was held in and then
forced to endure exposure to the fumes of burning/burnt human
flesh.” ECF 2 at 1. 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. “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).
Penninger presents three claims in this complaint. First he
alleges the defendants failed to train and supervise proper
safety procedures. Pursuant to Monell v. Dept. of Soc.
Servs. of City of New York, 436 U.S. 658 (1978), such
claims can be brought against municipalities based on their
policy, practice, or custom. However, “in the Eighth
Amendment context, such claims may only be maintained against
a municipality.” Sanville v. McCaughtry, 266
F.3d 724, 740 (7th Cir. 2001) (citing Farmer v.
Brennan, 511 U.S. 825, 841 (1994)). Here, none of the
defendants are municipalities. Therefore, these allegations
do not state a Monell claim. To the extent Mr.
Penninger is alleging the defendants did not properly
supervise, there is no general respondeat superior
liability under 42 U.S.C. § 1983, and they cannot be
held liable simply because they employed or supervised
others. See Burks v. Raemisch, 555 F.3d 592, 594
(7th Cir. 2009). “[P]ublic employees are responsible
for their own misdeeds but not for anyone else's.”
Id. at 596. “Only persons who cause or
participate in the violations are responsible.”
George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007).
The claims in count 1 must be dismissed.
Mr. Penninger alleges the defendants were deliberately
indifferent because they did not “properly maintain
safety and alert control devices which if they had would have
allowed a much faster response time to the emergency/fire
situation.” ECF 2 at 3. These allegations are vague. It
is unclear what situation, what devices, how they were
improperly maintained, or how fast a response occurred. It is
unclear how each individual defendant was personally
responsible for the safety devices. It is unclear what injury
Mr. Penninger suffered as a result of the emergency fire
situation. A complaint must contain sufficient factual matter
to “state a claim that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “Factual allegations must be
enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”
Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555
(2007) (quotation marks, citations and footnote omitted).
“[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not shown-that the pleader
is entitled to relief.'” Iqbal, 556 U.S.
at 679 (quotation marks and brackets omitted). 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). As
presented, the claims in count 2 do not allege sufficient
facts to state a claim.
Mr. Penninger alleges “infliction of emotional
duress.” ECF 2 at 3. However, the Prison Litigation
Reform Act provides that “[n]o Federal civil action may
be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical
injury or the commission of a sexual act (as defined in
section 2246 of Title 18).” 42 U.S.C. § 1997e(e).
Because Mr. Penninger has not alleged a physical injury or a
sexual act, he cannot recover for an emotional injury. The
claims raised in count 3 do not state a claim.
complaint does not state a claim. It is unclear what facts
Mr. Penninger can allege which would state a claim.
Nevertheless, he will be given an opportunity to file an
amended complaint to add additional factual allegations.
See Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir.
2013). To file an amended complaint, he needs to get a blank
Prisoner Complaint (INND Rev. 8/16)
form from his prison law library and put this cause number on
it. He must include all claims against any defendant he is
attempting to sue based on the events of April 7, 2017. He
must explain what each defendant did or did not do which
makes that defendant personally financially liable to him.
these reasons, the court:
(1) GRANTS Jason D. Penninger until September 30,
2019 to file an amended complaint; and
(2) CAUTIONS Jason D. Penninger if he does not respond by the
deadline, this case will be dismissed without further notice
pursuant to 28 U.S.C. § 1915A because this complaint