# Rogers v. Neil

> District Court, N.D. Indiana · March 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10163755

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** March 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10163755

## How later opinions describe it (automated extraction)

- concluding inmate’s liberty interest in refusing unwanted medical treatment of delousing shampoo was overridden by jail policy designed to address legitimate interest in avoiding outbreaks of lice
- noting that there is not a Fourteenth Amendment substantive due process right to an inmate grievance procedure

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

TIGER A. ROGERS,

Plaintiff,

v. CAUSE NO. 3:22-CV-691-DRL-MGG

RON NEIL et al.,

Defendants.

OPINION AND ORDER
Tiger A. Rogers, a prisoner without a lawyer, filed a complaint against twelve
defendants. ECF 2. “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). Under 28 U.S.C. § 1915A, the court still 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.
Mr. Rogers alleges that, on October 4, 2020, Officer Hill asked him if he was high.
Mr. Rogers said he wasn’t high. Officer Hill did a pat down search of Mr. Rogers and told
him to cuff up. Mr. Rogers asked why, and Officer Hill said that they were going to MSU.
Officer Hill wouldn’t explain why they were going to MSU. When they arrived, Nurse
Tiffany told Mr. Rogers to sit in a chair. She asked Mr. Rogers for his name and DOC
number. He provided them. Without more, Nurse Tiffany approached with Narcan in
both hands. Mr. Rogers told her to stop and that he wasn’t high. She nodded at Officer
Hill. He responded by placing Mr. Rogers in a choke hold so that Nurse Tiffany could

administer the Narcan. Mr. Rogers was compliant until this point, but he then began
resisting. Officer Hill pulled Mr. Rogers over backward by his neck, causing Mr. Rogers
and the chair to crash to the floor. Mr. Rogers then lost consciousness. Narcan was
administered while he was unconscious.
Supervisor Lt. Cassaneda arrived to find Officer Hill and Mr. Rogers on the floor
after the Narcan had been administered. She heard Mr. Rogers gasping for breath and

ordered Officer Hill to let go of him, but she didn’t otherwise reprimand or chastise
Officer Hill. Someone helped Mr. Rogers to his feet and took him to a holding cell. He
had cuts on his arms, legs, and back from the encounter.
Inmates possess a Fourteenth Amendment due process liberty interest in “refusing
forced medical treatment while incarcerated.” Knight v. Grossman, 942 F.3d 336, 342 (7th

Cir. 2019). To establish such a claim, the prisoner must demonstrate that the defendant
“acted with deliberate indifference to his right to refuse medical treatment.” Id. “Neither
negligence nor gross negligence is enough to support a substantive due process claim,
which must be so egregious as to ‘shock the conscience.’” Id. (citation omitted). Moreover,
a prisoner’s right to refuse medical treatment can be overridden by “a prison regulation

that is reasonably related to legitimate penological interests.” Id. at 343; see also Russell v.
Richards, 384 F.3d 444, 447-50 (7th Cir. 2004) (concluding inmate’s liberty interest in
refusing unwanted medical treatment of delousing shampoo was overridden by jail
policy designed to address legitimate interest in avoiding outbreaks of lice). “[I]f
legitimate penological interests dictate that a particular treatment must be administered
even if the prisoner would have refused it, then . . . there is no constitutional right to

refuse treatment[.]” Knight, 942 F.3d. at 343 (quoting Pabon v. Wright, 459 F.3d 241, 252
(2d Cir. 2006)). The facts may ultimately show that Mr. Rogers’ behavior was indicative
of an opioid overdose, in which case Nurse Tiffany may have acted reasonably to provide
life-saving treatment. However, at the pleading stage, the court must credit Mr. Rogers’
statement that he wasn’t under the influence of opioids and clearly communicated his
desire to refuse Narcan to Nurse Tiffany. Therefore, he will be permitted to proceed on a

Fourteenth Amendment claim against Nurse Tiffany for administering Narcan against
his will on October 4, 2020.
Under the Eighth Amendment, prisoners cannot be subjected to cruel and unusual
punishment. See Farmer v. Brennan, 511 U.S. 825, 833-34 (1994). The “core requirement”
for an excessive force claim is that the defendant “used force not in a good-faith effort to

maintain or restore discipline, but maliciously and sadistically to cause
harm.” Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir. 2009) (citation omitted). Several
factors guide the inquiry of whether an officer’s use of force was legitimate or malicious,
including the need for an application of force, the amount of force used, and the extent of
the injury suffered by the prisoner. Id. Giving Mr. Rogers the inferences to which he is

entitled at this stage, he states a plausible Eighth Amendment claim against Officer Hill
for placing him in a choke hold on October 4, 2020.
Mr. Rogers also sued Lt. Cassaneda, who intervened to stop Officer Hill but didn’t
further reprimand or chastise him. Mr. Rogers doesn’t have a constitutional right to have
Officer Hill reprimanded or punished by his superiors. Therefore, he won’t be permitted
to proceed against Lt. Cassaneda.

Following the incident, Mr. Rogers was moved to a different holding cell. Officer
Canteberry told Mr. Rogers that Nurse Tiffany said he would need to spend the night in
the cell. The unit was so cold that the officers were wearing their coats. Mr. Rogers asked
Officer Canteberry for a blanket, but he refused to give him one, noting that only people
on suicide watch get them. Mr. Rogers yelled for help. Mr. Rogers saw two black female
officers. One made a comment that Mr. Rogers describes as “smart”—he doesn’t indicate

what was said. He responded by calling the officers names. Additional comments were
made by both the officers and Mr. Rogers. Sgt. Canteberry then said that was “strike 2”
and sprayed Mr. Rogers with OC spray. Mr. Rogers turned away to protect his face. Sgt.
Canteberry then drenched Mr. Rogers’ backside in OC spray, focusing on his buttocks.
Sgt. Canteberry was laughing and said he had all day. At one point, Mr. Rogers turned

around. Sgt. Canteberry continued spraying, focusing on his genitals. After a short time,
Sgt. Canteberry placed Mr. Rogers in cuffs and took him to the shower. Sgt. Canteberry
allegedly turned on the cold water for only a few seconds and then said they were done.
Mr. Rogers remained handcuffed. Sgt. Canteberry grabbed Mr. Rogers’ arms, banged his
head into the wall, and then pulled him out of the shower. Mr. Rogers was taken back to

the same holding cell and ordered to remove his clothes. Sgt. Canteberry took all his
clothes, left, and then returned to take Mr. Rogers back to his cell. Mr. Rogers refused to
go anywhere alone with him. On this pleading, Mr. Rogers will be granted leave to
proceed against Sgt. Canteberry for excessive force and cruel and unusual punishment.
Around 9:30 p.m., Sgt. Bass came to the cell where Mr. Rogers was being housed
with the same clothes Sgt. Canteberry had taken from him and ordered him to put them

on. Mr. Rogers put them on. He was handcuffed and his pants were around his ankles,
without underwear. The two female officers Mr. Rogers had the verbal exchange with
were waiting for him and made fun of his genitalia. Mr. Rogers was then walked back to
his cell by Sgt. Bass with his genitalia exposed. It can be plausibly inferred that Mr. Rogers
is alleging that he wasn’t permitted to pull up his pants and was forced to walk down the
range with his genitals exposed, without a valid correctional justification, and for the

purposes of harassing or humiliating him. Therefore, he will be permitted to proceed
against Sgt. Bass.1
Once Mr. Rogers had been returned to his cell, he asked the cell house officers for
a shower and medical attention. His request was denied. He asked to see a “white hat,”
and that request was also denied. He then lit a fire in his cell to obtain the attention of

someone higher up. Lt. Neil arrived with an unknown officer to find Mr. Rogers
squeezing his scrotum. They laughed at his pain and denied him both a shower and
medical attention, stating that he would just have to let the OC gas run its course.

1 Mr. Rogers further alleges that Sgt. Bass threw a couple family photos in his toilet. The
Fourteenth Amendment provides that state officials shall not “deprive any person of life, liberty,
or property, without due process of law . . ..” But, 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 they 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.”).
In evaluating an Eighth Amendment deliberate indifference claim, courts conduct
both an objective and a subjective inquiry. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The

objective prong asks whether the alleged deprivation is “sufficiently serious” that the
action or inaction of a prison official leads to “the denial of the minimal civilized measure
of life’s necessities.” Id. (citations omitted). On the subjective prong, the prisoner must
show the defendant acted with deliberate indifference to the inmate’s health or safety.
Farmer, 511 U.S. at 834. As this circuit has explained:
[C]onduct is deliberately indifferent when the official has 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) (citations and quotations omitted). Put
another way, an inmate can state a viable claim for deliberate indifference if he alleges
the defendant “deliberately ignored a prison condition that presented an objectively,
sufficiently serious risk of harm.” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014) (citation
omitted). Though it would be unprofessional to laugh at Mr. Rogers, the complaint
doesn’t contain facts from which it can be plausibly inferred that Lt. Neil was deliberately
indifferent to Mr. Rogers’ needs.
Mr. Rogers talked with Major Wardlow about the incident on October 12, 2022.
Major Wardlow opined that, if Mr. Rogers walked to MSU, he didn’t need Narcan. Major
Wardlow indicated he was in talks with the medical provider concerning when to
administer Narcan. Major Wardlow instructed Mr. Rogers to write him about the
incident. Mr. Rogers sent a letter, as instructed, but Major Wardlow didn’t respond. These
allegations do not state a claim. Mr. Rogers does not have a right to a response to his
letter.

Mrs. Suida was Mr. Rogers’ counselor, and Mr. Rogers alleges she retaliated
against him. She was the Disciplinary Hearing Board member in a disciplinary case
where sanctions were vacated because she made a mistake. This didn’t sit well with her,
so she tried to make Mr. Rogers pay by turning in time sensitive documents late or not at
all, including two requests to have camera footage of the events giving rise to this
complaint preserved. Other paperwork she failed to process resulted in Mr. Rogers

spending an additional five weeks in solitary confinement. Mr. Rogers further alleges
that Pam Banes colluded with Mrs. Suida to inflict personal punishment on him.
“To prevail on his First Amendment retaliation claim, [Mr. Rogers] 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 Defendant[‘s] decision to take
the retaliatory action.” Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012) (quotation marks
and citations omitted). Mr. Rogers hasn’t identified any protected First Amendment
activity or alleged facts permitting an inference that any First Amendment activity was a
motivating factor in the alleged retaliatory action. Furthermore, his allegations regarding

the alleged deprivation are too vague to state a claim. Therefore, Mr. Rogers can’t proceed
against Mrs. Suida or Pam Banes on a retaliation claim.
Mr. Rogers filed grievances against Mrs. Suida, but Joshua Wallen denied them.
Mr. Rogers alleges that Wallen colluded with Mrs. Suida, resulting in grievance appeals
being stamped received days after they were turned in or not being returning to him. Mr.
Wallen’s denials of Mr. Rogers’ grievances allegedly “green lighted” Mrs. Suida’s

retaliation, which allegedly continued. However, Mr. Rogers does not identify any
retaliatory act occurring after he filed the grievances against Mrs. Suida. Furthermore,
Mr. Rogers has no constitutional right to access the grievance process. See Grieveson v.
Anderson, 538 F.3d 763, 770 (7th Cir. 2008) (noting that there is not a Fourteenth
Amendment substantive due process right to an inmate grievance procedure). Therefore,
Mr. Rogers can’t proceed against Mr. Wallen or Mrs. Suida for interfering with the

grievance process.
Mr. Rogers also claims that he experienced mail inconsistencies when he was
trying to send out a notice of tort claim related to these events. He filed a grievance
against Sgt. Nelson, and Sgt. Nelson allegedly retaliated by destroying 28 personal
photographs. Mr. Rogers was charged to return the photos to his niece, and Sgt. Nelson

claimed he sent them. Later he allegedly admitted he destroyed them. These allegations
are too vague to state a claim. Therefore, Mr. Rogers can’t proceed against Sgt. Nelson
Finally, Mr. Rogers alleges that Warden Ron Neil and Major Wardlow are
responsible for the policies and customs of Indiana State Prison and the behavior of their
employees. There is no general respondeat superior liability under 42 U.S.C. § 1983, and

defendants cannot be held individually liable simply because they employed or
supervised an alleged wrongdoer. See Burks v. Raemisch, 555 F.3d 592, 594-96 (7th Cir.
2009) (“[P]ublic employees are responsible for their own misdeeds but not for anyone
else’s.”). Therefore, these allegations don’t state a claim.
For these reasons, the court:
(1) GRANTS Tiger A. Rogers leave to proceed against Nurse Tiffany in her

individual capacity for compensatory and punitive damages for administering Narcan
against his will on October 4, 2020, in violation of the Fourteenth Amendment;
(2) GRANTS Tiger A. Rogers leave to proceed against Officer Hill in his individual
capacity for compensatory and punitive damages for using excessive force against him
when applying a choke hold on October 4, 2020, in violation of the Eighth Amendment;
(3) GRANTS Tiger A. Rogers leave to proceed against Sgt. Canteberry in his

individual capacity for compensatory and punitive damages for spraying Mr. Rogers
with OC spray, providing an inadequate decontamination shower, and banging his head
against the wall on October 4, 2020, in violation of the Eighth Amendment;
(4) GRANTS Tiger A. Rogers leave to proceed against Sgt. Bass in his individual
capacity for compensatory and punitive damages for requiring Mr. Rogers to walk down

the range naked without a valid correctional justification and for the purposes of
harassing or humiliating him on October 4, 2020, in violation of the Eighth Amendment;
(5) DISMISSES all other claims;
(6) DISMISSES Lt. Cassaneda; Lt. Neil, Major Wardlow, J. Wallen, Mrs. Suida, Pam
Banes, Sgt. Nelson, Warden Ron Neil.

(7) DIRECTS the clerk, under 28 U.S.C. § 1915(d), to request Waiver of Service from
(and if necessary, the United States Marshals Service to use any lawful means to locate
and serve process on) Nurse Tiffany at Wexford of Indiana, LLC, with a copy of this order
and the complaint (ECF 2);
(8) DIRECTS the clerk, under 28 U.S.C. § 1915(d), to request Waiver of Service from
(and if necessary, the United States Marshals Service to use any lawful means to locate

and serve process on) Officer Hill, Sgt. Canteberry, Sgt. Bass at Indiana Department of
Correction, with a copy of this order and the complaint (ECF 2);
(9) ORDERS the Indiana Department of Correction and Wexford of Indiana, LLC,
to provide the full name, date of birth, and last known home address of any defendant
who doesn’t waive service if it has such information; and
(10) ORDERS, under 42 U.S.C. § 1997e(g)(2), Nurse Tiffany, Officer Hill, Sgt.

Canteberry, and Sgt. Bass 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 the plaintiff has been
granted leave to proceed in this screening order.
SO ORDERED.
March 24, 2023 s/ Damon R. Leichty
Judge, United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10163755. Public record. Not legal advice.