United States District Court, S.D. Indiana, Terre Haute Division
ORDER SCREENING COMPLAINT, DISMISSING INSUFFICIENT
CLAIMS, AND DIRECTING SERVICE OF PROCESS
R. SWEENEY II, JUDGE UNITED STATES DISTRICT COURT
plaintiff is a prisoner currently incarcerated at Wabash
Valley Correctional Facility. Because the plaintiff is a
“prisoner” as defined by 28 U.S.C. §
1915A(c), this Court has an obligation under 28 U.S.C. §
1915A(a) to screen his complaint before service on the
defendants. Pursuant to 28 U.S.C. § 1915A(b), the Court
must dismiss the complaint if it is frivolous or malicious,
fails to state a claim for relief, or seeks monetary relief
against a defendant who is immune from such relief. In
determining whether the complaint states a claim, the Court
applies the same standard as when addressing a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6).
See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir.
2017). To survive dismissal,
[the] complaint must contain sufficient factual matter,
accepted as true, to state a claim for relief that is
plausible on its face. A claim has facial plausibility when
the plaintiff pleads factual content that 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). Pro se
complaints such as that filed by the plaintiff are construed
liberally and held to a less stringent standard than formal
pleadings drafted by lawyers. Perez v. Fenoglio, 792
F.3d 768, 776 (7th Cir. 2015).
complaint names four defendants: 1) Christopher Nicholson; 2)
Sgt. Cobb; 3) Correctional Officer Dalton Rinehart; and 4)
Correctional Officer Ivy. The plaintiff alleges that on
August 2, 2019, he was refused recreation time and a shower
by Officer Rhinehart. Later that same day, he felt an
abnormal sharp tingle in his throat while eating from a
kosher tray that had been delivered to him while he was
meeting with his attorney. He checked his food tray and
discovered pieces of razor in his food. He yelled for help
but it took nearly two hours for staff to respond. He showed
Sgt. Cobb and Officers Rhinehart and Ivy the tray. Sgt. Cobb
sprayed the plaintiff with OC spray without prior warning and
removed him from his cell. The plaintiff threw up blood later
plaintiff claims that these events all occurred in
retaliation for the plaintiff's prior alleged assault on
Officer Rhinehart. Lt. Nicholson knew of the situation
between the plaintiff and Officer Rhinehart, yet Lt.
Nicholson allowed Officer Rhinehart to continue to work
around the plaintiff and serve the plaintiff his food trays.
He also alleges that Lt. Nicholson was deliberately
indifferent to his serious medical condition when he waited
five days to take him to medical for an x-ray even though Lt.
Nicholson knew that the plaintiff had ingested a piece of
razor. He seeks compensatory and punitive damages.
the screening standard to the factual allegations in the
complaint, certain claims are dismissed while other claims
shall proceed as submitted.
all claims of retaliation are dismissed for
failure to state a claim because the plaintiff does not
allege that the retaliatory acts were motivated by the
plaintiff's First Amendment activity. To state a First
Amendment retaliation claim, the plaintiff must allege that:
(1) he engaged in activity protected by the First Amendment;
(2) he suffered a deprivation that would likely deter First
Amendment activity; and (3) the protected activity he engaged
in was at least a motivating factor for the retaliatory
action. Archer v. Chisholm, 870 F.3d 603, 618 (7th
Cir. 2017) (citing Bridges v. Gilbert, 557 F.3d 541,
546 (7th Cir. 2009); Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. ...