Cobb v. Snow

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

MALCOM D. COBB, JR.,

Plaintiff,

v. CAUSE NO. 3:20-CV-835-JD-MGG

LIEUTENANT SNOW,

Defendant.

OPINION AND ORDER

Malcom D. Cobb, Jr., a prisoner without a lawyer, filed a complaint. 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

complaint and dismiss it if the action is frivolous or malicious, fails to state a claim, 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).

In the complaint,1 Cobb alleges that, on August 25, 2019, he submitted an

informal grievance to Lieutenant Snow, which read:

1 Cobb has attached exhibits to his complaint, which are “a part of the pleading for all purposes.”

Fed. R. Civ. P. 10(c).

Lt. Snow was in chow hall. I asked him do you remember when you

shook me down and cuffed me up behind my back and made me sit on

my hands in my wheelchair and I asked you to loosen the cuffs because

you made me hit my leg? And I asked have you got your lawsuit papers

and you laughed at me!

In September 2019, Lieutenant Snow refused to allow him to sit at a handicapped table

in the cafeteria. Cobb asked Lieutenant Snow if had received the grievances he had filed

against him. Lieutenant Snow responded, “Cobb, go lay down and die somewhere. And

I’m not worried about your paperwork grievances, so, Cobb, shut up and go.”

Cobb asserts an Eighth Amendment claim of deliberate indifference to serious

medical needs against Lieutenant Snow for refusing to allow him to sit at a handicap

table and for his verbal response. Under the Eighth Amendment, inmates are entitled to

adequate medical care. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To establish liability, 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). Further,

“[s]imple or complex, most verbal harassment by jail or prison guards does not rise to

the level of cruel and unusual punishment.” Beal v. Foster, 803 F.3d 356, 358 (7th Cir.

2015).

Here, Cobb does not describe his physical condition or otherwise explain how

refusing him access to a handicapped table and requiring him to sit at a different table

amounted to deliberate indifference to a serious medical need or a substantial risk of

harm. Moreover, while the court does not condone Lieutenant Snow’s distasteful

response, the allegations suggest that it was an isolated comment in response to an

unpleasant reminder that Cobb had filed grievances and lawsuits against him and that

it did not rise to the level of a constitutional violation. Therefore, Cobb may not proceed

on an Eighth Amendment claim based on these allegations.

Cobb also asserts a claim against Lieutenant Snow for retaliating against him in

violation of the First Amendment. 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). It is not plausible that Lieutenant Snow’s response would

deter a prisoner of ordinary firmness from engaging in First Amendment activity.

Though distasteful, the response suggests no more than an unremarkable level of

personal animosity; it does not suggest a deprivation of basic necessities, the threat of

physical harm, an increased term of incarceration, or even a loss of privileges.

Therefore, Cobb may not proceed on a First Amendment claim on this complaint.

Additionally, Cobb asserts a claim against Lieutenant Snow under the

Rehabilitation Act for refusing to allow him access to a handicap table. “To state a claim

under the Rehabilitation Act, [a plaintiff] need only allege that (1) he is a qualified

person (2) with a disability and (3) the [public entity] denied him access to a program or

activity because of his disability.” Jaros v. Illinois Dept. of Corrections, 684 F.3d 667, 672

(7th Cir. 2012). As mentioned above, Cobb does not describe his physical condition in

the complaint. Further, Lieutenant Snow is not a public entity that can be sued under

the Rehabilitation Act. See id. at 670 (“employees of the Department of Corrections are

not amenable to suit under the Rehabilitation Act or the ADA”); 29 U.S.C. § 794(b).

Therefore, Cobb may not proceed on a claim under the Rehabilitation Act on this

complaint.

Though Cobb may not proceed on this complaint, the court will give him the

opportunity to file an amended complaint. See Luevano v. Wal-Mart, 722 F.3d 1014 (7th

Cir. 2013). If he chooses to file an amended complaint, he should use the court’s

approved form and must put the case number of this case on it, which is on the first

page of this order. However, Cobb should file an amended complaint only if, after

reviewing this order, he believes that he can state a viable claim.

For these reasons, the court:

(1) GRANTS Malcom D. Cobb, Jr., until December 7, 2020, to file an amended

complaint; and

(2) CAUTIONS Malcom D. Cobb, Jr., that, if he does not respond by that

deadline, this case will be dismissed pursuant to 28 U.S.C. § 1915A for failure to state a

claim.

SO ORDERED on November 6, 2020

/s/JON E. DEGUILIO

CHIEF JUDGE

UNITED STATES DISTRICT COURT