# Gates v. Neal

> District Court, N.D. Indiana · February 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10158937

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** February 4, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

ARTHUR LEE GATES JR.,

Plaintiff,

v. CAUSE NO.: 3:20-CV-102-RLM-MGG

RON NEAL, et al.,

Defendants.

OPINION AND ORDER
Arthur Lee Gates, Jr., a prisoner without a lawyer, filed a complaint and a
motion for leave to proceed in forma pauperis. 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. 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).
“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).
Mr. Gates has accrued three strikes under the Prison Litigation Reform
Act, see Gates v. Indiana Dept. of Correction, 2:11-cv-281 (S.D. Ind. filed Oct.
14, 2011); Gates v. Childers, 3:07-cv-178 (S.D. Ind. filed Dec. 4, 2007), so he
can’t proceed in forma pauperis, except for claims alleging that he is in imminent
danger of serious physical injury. 28 U.S.C. § 1915(g). To meet the “imminent
danger” standard, the threat complained of must be real and proximate.

Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003). Only “genuine
emergencies” qualify as a basis for circumventing § 1915(g). Lewis v. Sullivan,
279 F.3d 526, 531 (7th Cir. 2002).
Mr. Gates alleges that he suffers from severe mental and physical
disabilities, including complications from back surgery performed by Dr. Riafi in
January 2018. On March 15, 2019, Dr. Nancy Marthakis confiscated his
wheelchair and discontinued his prescriptions for blood pressure and pain
medication. According to the complaint, she explained that she was retaliating

against him for participating as a witness in a lawsuit against her. He was
provided with a walker, which he can’t use, and he can’t walk to the cafeteria.
She also relied on a video recording of Mr. Gates involved in a physical altercation
with another inmate in the infirmary. Dr. Marthakis refuses to send him to a
specialist for an accurate diagnosis and additional surgery, and refuses to
provide him with physical therapy. The complaint goes on to allege that on March
26, 2019, Sergeant Tibbs, Sergeant Pete, and Officer Cassidy dragged Mr. Gates
from his wheelchair and dropped him on the floor of his dormitory, and he was

later placed on suicide watch. Since June 4, 2019, he hasn’t received a kosher
food tray, and Aramark staff hasn’t fed him. For his claims, Mr. Gates seeks
injunctive relief and money damages.
Mr. Gates asserts an Eighth Amendment claim of deliberate indifference
to serious medical needs against Dr. Marthakis. To establish such a claim, a
prisoner must satisfy both an objective and subjective component by showing:
(1) his medical need was objectively serious; and (2) the defendant acted with

deliberate indifference to that medical need. Farmer v. Brennan, 511 U.S. 825,
834 (1994). A medical need is “serious” if it is one that a physician has diagnosed
as mandating treatment, or one that is so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention. Greeno v. Daley, 414 F.3d
645, 653 (7th Cir. 2005). Deliberate indifference means that the defendant “acted
in an intentional or criminally reckless manner, i.e., the defendant must have
known that the plaintiff was at serious risk of being harmed and decided not to
do anything to prevent that harm from occurring even though he could have

easily done so.” Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005).
Mr. Gates further asserts a First Amendment claim of retaliation against
Dr. Marthakis. 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’s allegations, when taken as true,

allow Mr. Gates to proceed against Dr. Marthakis on claims under the First and
Eighth Amendments.
Mr. Gates seeks preliminary and permanent injunctions to get proper
treatment for his back condition and access to meals. Because the Prison
Litigation Reform Act limits the court’s authority to grant injunctive relief in this
case, the injunctive relief, if granted, will be limited to ordering staff to treat his

back condition and to accommodate his physical limitations as required by the
Eighth Amendment. See Westefer v. Neal, 682 F.3d 679 (7th Cir. 2012). As
Warden of the Indiana State Prison, Ron Neal has both the authority and the
responsibility to ensure that Mr. Gates receives the medical care and
accommodations to which he is entitled under the Eighth Amendment. See
Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011). Therefore, the court
will allow Mr. Gates to proceed against the Warden in his official capacity on an
injunctive relief claim and will order the Warden to respond to the motion for a

preliminary injunction. For the sake of efficiency, the Warden may also address
the credibility of the imminent danger allegation in this response. See Taylor v.
Watkins, 623 F.3d 483, 485 (7th Cir. 2010).
Mr. Gates can’t proceed against Dr. Riafi, Sergeant Tibbs, Sergeant Pete,
and Officer Cassidy because the claims against them are not based on allegations
that suggest imminent danger. Nor can he proceed against the Aramark staff
because the Aramark staff is not an individual or other suable entity but a group
of individuals that must be separately identified and named as defendants. Mr.

Gates lists forty-five other defendants, but he doesn’t mention these defendants
in the narrative portion of complaint. Because it is unclear why he has named
these defendants in this lawsuit, they are dismissed.
Mr. Gates also filed a motion to appoint counsel. “[T]here is no
constitutional or statutory right to court-appointed counsel in federal civil
litigation . . .” Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007) (en banc). In
some circumstances, the court may ask an attorney to volunteer to represent

indigent parties.
When confronted with a request under § 1915(e)(1) for pro bono
counsel, the district court is to make the following inquiries: (1) has
the indigent plaintiff made a reasonable attempt to obtain counsel
or been effectively precluded from doing so; and if so, (2) given the
difficulty of the case, does the plaintiff appear competent to litigate
it himself?

Id. at 654. Mr. Gates doesn’t represent that he has made any attempt to obtain
counsel on his own, so the court can’t find that he made a reasonable attempt
at obtaining counsel. “If . . . the indigent has made no reasonable attempts to
secure counsel . . ., the court should deny any [such requests] outright.” Jackson
v. County of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). The court will deny
the motion with leave to refile after Mr. Gates has sent a copy of this court’s
screening order to ten attorneys along with a letter requesting that they represent
him and has waited a reasonable time for their responses.
Finally, Mr. Gates filed a motion asking the court to order the defendants
to provide a list of their full names and addresses for purposes of service. This
motion is denied as unnecessary because Mr. Gates has already provided the
full names and work addresses of the defendants against whom he can proceed.
Further, if it appears that additional information is required for service, the court
will order it from the appropriate entity on its own motion. See 28 U.S.C. §
1915(d) (“The officers of the court shall issue and serve all process, and perform
all duties in [in forma pauperis] cases.”).
For these reasons, the court:
(1) GRANTS Arthur Lee Gates, Jr., leave to proceed against Dr. Nancy

Marthakis for money damages on an Eighth Amendment claim of deliberate
indifference to serious medical needs for depriving him of adequate medical care
for his back condition since March 15, 2019;
(2) GRANTS Mr. Gates leave to proceed against Dr. Nancy Marthakis for
money damages on a First Amendment claim for retaliating against him for
participating in another lawsuit by depriving him of adequate medical care for
his back condition since March 15, 2019;
(3) GRANTS Mr. Gates leave to proceed on an injunctive relief claim against

Warden Ron Neal in his official capacity to obtain the medical treatment for his
back condition and the access to meals to which he is entitled under the Eighth
Amendment;
(4) DISMISSES all other defendants;
(5) DISMISSES all other claims;
(6) DIRECTS the clerk to request Waiver of Service from (and if necessary
the United States Marshals Service to serve process on) the Warden Ron Neal at
the Indiana Department of Correction with a copy of this order and the complaint

(ECF 1), pursuant to 28 U.S.C. § 1915(d);
(7) DIRECTS the clerk to request Waiver of Service from (and if necessary
the United States Marshals Service to serve process on) Dr. Nancy Marthakis at
Wexford of Indiana, LLC, with a copy of this order and the complaint (ECF 1),
pursuant to 28 U.S.C. § 1915(d);
(8) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), Warden Ron Neal and
Dr. Nancy Marthakis 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 Arthur Lee
Gates, Jr., has been granted leave to proceed in this screening order;
(9) ORDERS the Warden Ron Neal to file a response by February 14, 2020,
to the motion for a preliminary injunction;
(10) DENIES the motion for counsel (ECF 7);
(11) DIRECTS the clerk to send Mr. Gates ten (10) copies of this order; and
(12) DENIES as UNNECESSARY the motion for a court order (ECF 6).
SO ORDERED on February 4, 2020

s/ Robert L. Miller, Jr.
JUDGE
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10158937. Public record. Not legal advice.