Hill v. Sanders

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

SHAWN M. HILL,

Plaintiff,

v. CAUSE NO. 3:21-CV-611-JD-MGG

SANDERS, et al.,

Defendants.

OPINION AND ORDER

Shawn M. Hill, a prisoner without a lawyer, filed an amended complaint. ECF

19. “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. The court applies the same

standard as when deciding a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal, a

complaint must state a claim for relief that is plausible on its face. Bissessur v. Indiana

Univ. Bd. of Trs., 581 F.3d 599, 602 (7th Cir. 2009). “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.” Id. (internal quotation

marks and citation omitted). A plaintiff can plead himself out of court if he pleads facts

that preclude relief. See Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir. 2007); McCready v.

Ebay, Inc., 453 F.3d 882, 888 (7th Cir. 2006). In addition, the Federal Rules of Civil

Procedure provide that “[a] copy of a written instrument that is an exhibit to a pleading

is a part of the pleading for all purposes.” Fed. R. Civ. P. 10(c). When the plaintiff

references and relies on it, “the contents of that document become part of the complaint

and may be considered as such when the court [determines] the sufficiency of the

complaint.” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013) (citations omitted).

On August 7, 2021, Hill called Correction Official Sanders over to his cell at the

Indiana State Prison (ISP) because he did not get a lunch tray. C.O. Sanders said, “That

sucks for you.” ECF 19 at 2. Hill responded by saying, “What the fuck did you just say?

Okay SANDERS, I need a grievance to put your name on.” Id. (capitalization and

underlining in original). C.O. Sanders then asked Hill’s neighbor for a cup of water, and

he immediately turned and threw the water in Hill’s face. C.O. Sanders told Hill, “Bitch,

if you say my name to anyone, you will not make it out of D-cell House alive.” Id.

(underlining in original). According to Hill, the water that hit him destroyed his

personal pictures and legal work.

Hill alleges C.O. Sanders “assaults inmates probably once a week,” but he does

not provide any details as to the types of alleged assaults. Id. at 3. Hill claims this has

been reported to Warden Ron Neal “many times,” but he has refused to do anything. Id.

According to Hill, Commissioner Robert E. Carter has also “been notified of the staff

assaults in D Dorm” and has not rectified the situation. Id.

Hill, a pretrial detainee, claims C.O. Sanders retaliated against him in violation of

the First Amendment and used excessive force against him in violation of the

Fourteenth Amendment. He also claims Warden Neal and Commissioner Carter failed

to protect him from the attack. Finally, he claims Warden Neal and Commissioner

Carter were negligent “for failing to instruct, supervise, control, and discipline” the staff

at ISP. Id. at 4. Hill has requested monetary damages and “as many criminal charges as

possible.”1 Id. at 5.

Because Hill alleges he was a pretrial detainee when these events occurred, his

claims must be analyzed under the Fourteenth Amendment. Miranda v. Cty. of Lake, 900

F.3d 335, 352 (7th Cir. 2018). “Pre-trial detainees cannot enjoy the full range of freedoms

of unincarcerated persons.” Tucker v. Randall, 948 F.2d 388, 390–91 (7th Cir. 1991)

(citation omitted). Nevertheless, the Fourteenth Amendment prohibits “punishment” of

pretrial detainees. Bell v. Wolfish, 441 U.S. 520, 535 (1979). A pretrial detainee states a

valid Fourteenth Amendment claim by alleging that (1) the defendant “acted

purposefully, knowingly, or perhaps even recklessly,” and (2) the defendant’s conduct

was “objectively unreasonable.” Miranda, 900 F.3d at 353–54. “A jail official’s response

to serious conditions of confinement is objectively unreasonable when it is ‘not

rationally related to a legitimate nonpunitive governmental purpose[.]’” Mays v.

Emanuele, 853 F. App’x 25, 27 (7th Cir. 2021) (citing Kingsley v. Hendrickson, 576 U.S. 389,

398 (2015)). In determining whether a challenged action is objectively unreasonable,

1 Criminal charges are not available as a remedy in civil litigation.

courts must consider the “totality of facts and circumstances.” Mays v. Dart, 974 F.3d

810, 819 (7th Cir. 2020), cert. denied, 142 S. Ct. 69 (2021). “[N]egligent conduct does not

offend the Due Process Clause,” and allegations of negligence, even gross negligence,

do not suffice. Miranda, 900 F.3d at 353.

To establish an excessive force claim under the Fourteenth Amendment, the

plaintiff must allege “the force purposefully or knowingly used against him was

objectively unreasonable.” Kingsley, 576 U.S. 396-97. In determining whether force was

objectively unreasonable, courts consider such factors as the relationship between the

need for force and the amount of force that was used, the extent of any injuries the

plaintiff suffered, and the severity of the security problem. Id. at 397. “[N]ot every use of

force is a punishment: ‘Once the Government has exercised its conceded authority to

detain a person pending trial, it obviously is entitled to employ devices that are

calculated to effectuate this detention.’” Husnik v. Engles, 495 Fed. Appx. 719, 721 (7th

Cir. 2012) (quoting Bell, 441 U.S. at 537).

Here, the amount of force deployed was minimal. There is no suggestion the

water was hot or scalding—indeed, considering Hill has alleged it was from his fellow

inmate’s drinking cup, it may be assumed the water was cool or lukewarm. Hill has

neither alleged the cup hit him (in fact, he reiterates it was only the water that struck

him) nor that he suffered any physical injuries due to the incident. Although unpleasant

and arguably childish, throwing a cup of cool water on an inmate during a heated

verbal exchange is a de minimis use of force. See e.g. Lewis v. Downey, 581 F.3d 467, 475

(7th Cir. 2009) (“[N]ot every ‘malevolent touch’ by a security officer implicates the

Constitution.” (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)); see also Kingsley, 744

F.3d at 455 (noting with approval a jury instruction that required “some harm” as an

element of the claim); Carr v. Beth, 465 Fed. Appx. 567, 571 (7th Cir. 2012) (construed in

inmate’s favor, allegations that guards twisted his arm, sprayed him with pepper spray,

kicked him in the leg, and “suffocated him with water from a hose” were “severe

enough [to] rise above de minimis contact” necessary to state a claim). Thus, Hill has

not stated a Fourteenth Amendment excessive force claim. See Edwards v. Snyder, 478

F.3d 827, 830 (7th Cir. 2007) & McCready v. Ebay, Inc., 453 F.3d 882, 888 (7th Cir. 2006)

(plaintiff can plead himself out of court if he pleads facts that preclude relief).2

Hill also claims C.O. Sanders retaliated against him. “To establish a prima facie

case of unlawful retaliation, a plaintiff must show (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.” Douglas v.

2 To the extent Hill is attempting to assert a Fourteenth Amendment claim based on the water

damage to his photos and/or legal materials, he may not do so. The Fourteenth Amendment provides

that state officials shall not “deprive any person of life, liberty, or property, without due process of law . .

..” However, a state tort claims act that provides a method by which a person can seek reimbursement for

the negligent loss or intentional depravation of property meets the requirements of the due process clause

by providing due process of law. Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“For intentional, as for

negligent deprivations of property by state employees, the state’s action is not complete until and unless

it provides or refuses to provide a suitable post deprivation remedy.”). Indiana’s tort claims act (Indiana

Code § 34-13-3-1 et seq.) and other laws provide for state judicial review of property losses caused by

government employees and provide an adequate post deprivation remedy to redress state officials’

accidental or intentional deprivation of a person’s property. See Wynn v. Southward, 251 F.3d 588, 593 (7th

Cir. 2001) (“Wynn has an adequate post deprivation remedy in the Indiana Tort Claims Act, and no more

process was due.”). Even the destruction of legal materials is merely a property loss if the papers are

replaceable. Hossman v. Spradlin, 812 F.2d 1019 (7th Cir. 1987). Furthermore, legal papers are not deemed

irreplaceable merely because there is a cost associated with obtaining them. Therefore, Hill has not stated

any claims with regard to the water damage to his property.

Reeves, 964 F.3d 643, 646 (7th Cir. 2020) (internal quotation marks and citation omitted).

It is undisputed that “[a] prisoner has a First Amendment right to make grievances

about conditions of confinement, including the mistreatment of his personal property.”

Watkins v. Kasper, 599 F.3d 791, 798 (7th Cir. 2010) (citing Hasan v. U.S. Dep’t of Labor, 400

F.3d 1001, 1005 (7th Cir. 2005) (addressing a prisoner’s grievance about a guard’s

tampering with his typewriter)). However, that right must be exercised “in a manner

consistent with his status as a prisoner.” Id. (emphasis in original, citation omitted).

In Bridges v. Gilbert, an inmate alleged he had communicated a protected

grievance when he “threatened the Defendant that he was going to file a grievance

against her because it was inappropriate for her to kick his cell door, turn his lights on

and off, and slam his cell trap while he was sleeping.” Bridges v. Gilbert, 557 F.3d 541,

554 (7th Cir. 2009). In rejecting that argument and affirming the district court’s dismissal

order, the Seventh Circuit noted, “it seems implausible that a threat to file a grievance

would itself constitute a First Amendment-protected grievance.” Id. at 555 (emphasis in

original); see also Clark v. Reed, 772 Fed. Appx. 353, 355 (7th Cir. 2019) (citing Bridges and

finding qualified immunity applied to shield the defendant because it had not been

clearly established “that a threat to file a grievance was protected”); Cobian v.

McLaughlin, 717 Fed. Appx. 605, 612–13 (7th Cir. 2017) (citing Bridges and finding the

inmate’s “threat to go to court” if the prison staff member did not perform research and

update his file as requested was not a protected activity).

Here, Hill alleges he threatened to file a grievance when he responded to C.O.

Sanders’s dismissive comment by stating, “What the fuck did you just say? Okay

SANDERS, I need a grievance to put your name on.” As noted above, threatening to file

a grievance is not protected activity under the First Amendment. See e.g. Bridges, 557

F.3d at 555. Moreover, as in Watkins, Hill did not “confine himself to a formal, written

grievance or a courteous, oral conversation” with C.O. Sanders about the issue. Watkins,

599 F.3d at 798. Instead, he confronted him within earshot of at least one other inmate—

his neighbor from whom C.O. Sanders retrieved the cup—in a disrespectful manner

using foul language. This “confrontational, disorderly manner” in which Hill

responded to C.O. Sanders further removed his request from the protections of the First

Amendment. Id. at 798–99 (citing Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008)

(“characterizing a prisoner’s foul comment to a prison official that was ‘insulting,

derogatory, and questioned her authority’ as unprotected speech”)); see also Kervin v.

Barnes, 787 F.3d 833, 835 (7th Cir. 2015) (“[B]acktalk by prison inmates to guards, like

other speech that violates prison discipline, is not constitutionally protected” because it

can often lead to violence.). While the Court does not condone the action of C.O.

Sanders, Hill’s comment is not considered protected speech. Therefore, he has not

stated a retaliation claim.

Hill also asserts Warden Neal and Commissioner Carter failed to protect him

from the assault. Not only has the court concluded that Hill’s allegations against C.O.

Sanders did not constitute an impermissible use of force resulting in an independent

constitutional violation, but the failure to protect claim fails on its face as well. In the

Eighth Amendment context, a plaintiff bringing a failure-to-protect claim must allege

that “(1) he is incarcerated under conditions posing a substantial risk of serious harm,

and (2) defendant-officials acted with deliberate indifference to that risk.” Brown v.

Budz, 398 F.3d 904, 909 (7th Cir. 2005) (quotation marks omitted). In adapting this to the

Fourteenth Amendment context, the subjective deliberate-indifference standard is

replaced by an objective unreasonableness standard. Therefore, a plaintiff must allege

that (1) a defendant’s intentional, purposeful, or perhaps reckless act or omission placed

plaintiff in substantial risk of serious harm, and (2) the act or omission was objectively

unreasonable. The Seventh Circuit has equated “substantial risk” to “risks so great that

they are almost certain to materialize if nothing is done.” Brown, 398 F.3d at 911.

Reasonableness “must be determined in light of the totality of the circumstances.”

Pulera v. Sarzant, 966 F.3d 540, 550 (7th Cir. 2020).

Here, Hill alleges Warden Neal and Commissioner were notified that C.O.

Sanders assaulted inmates “probably once a week.” However, there are no details about

those alleged assaults provided, and there are no allegations to suggest that either were

aware of any specific threat—let alone a substantial risk—to Hill. Thus, he has not

stated a failure to protect claim.

Finally, Hill claims Warden Neal and Commissioner Carter were negligent “for

failing to instruct, supervise, control, and discipline” the staff at ISP. Id. at 4. Negligence

does not constitute a constitutional violation. See Kingsley, 744 F.3d at 450 (“Notably, the

Due Process Clause provides its own limiting principle; the Clause protects against only

abusive conduct that is more than negligence, or even gross negligence.”) (internal

citations omitted). Moreover, “there can be no liability . . . for failure to train when there

has been no violation of the plaintiff’s constitutional rights.” Jenkins v. Bartlett, 487 F.3d

482, 492 (7th Cir. 2007). Plus, officials cannot be held liable simply because they hold

supervisory positions at the prison. See e.g. Mitchell v. Kallas, 895 F.3d 492, 498 (7th Cir.

2018) (Liability under 42 U.S.C. § 1983 is based on personal responsibility, and

supervisory defendants cannot be held liable for the misdeeds of other prison staff.);

Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009) (same). Therefore, these claims

against Warden Neal and Commissioner Carter must also be dismissed.

“The usual standard in civil cases is to allow defective pleadings to be corrected,

especially in early stages, at least where amendment would not be futile.” Abu-Shawish

v. United States, 898 F.3d 726, 738 (7th Cir. 2018). However, “courts have broad

discretion to deny leave to amend where . . . the amendment would be futile.” Hukic v.

Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009). For the reasons previously

explained, such is the case here.

For these reasons, this case is DISMISSED pursuant to 28 U.S.C. § 1915A.

SO ORDERED on June 7, 2022

/s/JON E. DEGUILIO

CHIEF JUDGE

UNITED STATES DISTRICT COURT