Johnson v. Hershberger

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

CORNELIUS JOHNSON,

Plaintiff,

v. CAUSE NO. 1:23-CV-143-HAB-SLC

T. HERSHBERGER, et al.,

Defendants.

OPINION AND ORDER

Cornelius Johnson, a prisoner proceeding without a lawyer, was ordered to show

cause why the initial partial filing fee has not been paid. (ECF 4.) Upon review of his

response (ECF 8), the court will proceed to screen the case under 28 U.S.C. § 1915A. He

is reminded that he remains obligated to pay the full filing fee over time in accordance

with 28 U.S.C. § 1915(b)(2).

As required by 28 U.S.C. § 1915A, the court must screen the complaint (ECF 1)

and dismiss it if it 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. To proceed beyond the pleading stage, a complaint must contain sufficient factual

matter to “state a claim that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded factual content

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). Mr. Johnson is

proceeding without counsel, and therefore the court must give his allegations liberal

construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Mr. Johnson is serving a criminal sentence at Miami Correctional Facility. His

claims stem from an incident that occurred at the Allen County Jail when he was a

pretrial detainee. Specifically, he claims that on March 24, 2023, he was being

transported in the jail van when he bumped his forehead. He alleges that the injury was

caused by the fact that the van lacks seatbelts and the driver, Officer Shiling (first name

unknown), made some “sudden stops.” He claims he was seen by the nurse for this

injury, “given aspirin and sent on my way.” Based on this incident, he sues Officer

Shiling, Allen County Sheriff Troy Hershberger, and the Allen County Sheriff’s

Department for $1.5 million in damages and other relief.

Because Mr. Johnson was a pretrial detainee when this occurred, his rights arise

under the Fourteenth Amendment. Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015). The

“Fourteenth Amendment’s Due Process Clause prohibits holding pretrial detainees in

conditions that amount to punishment.” Mulvania v. Sheriff of Rock Island Cty., 850 F.3d

849, 856 (7th Cir. 2017). A pretrial detainee states a 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 v.

Cty. of Lake, 900 F.3d 335, 353-54. In determining whether a challenged action is

objectively unreasonable, courts must consider the “totality of facts and circumstances.”

Mays v. Dart, 974 F.3d 810, 819 (7th Cir. 2020). “[N]egligent conduct does not offend the

Due Process Clause.” Miranda, 900 F.3d at 353. Thus, allegations of negligence, even

gross negligence, do not suffice. Id.

Mr. Johnson alleges circumstances suggesting negligence, not objectively

unreasonable conduct that would violate the Constitution. See Dale v. Agresta, 771 F.

App’x 659, 661 (7th Cir. 2019) (“Neither the Supreme Court nor this court has ruled that

transporting an inmate without a seatbelt creates an intolerable risk of harm.”); Hill v.

Shobe, 93 F.3d 418, 421 (7th Cir. 1996) (“Allegations of a public official driving too fast

for the road conditions are grounded in negligence”); Knee v. Gann, No. 19-CV-3234-

JBM, 2019 WL 6834200, at *1 (C.D. Ill. Dec. 13, 2019) (pretrial detainee who claimed he

was not secured by a seatbelt and was injured when transport officer “slam[med] on the

brakes” did not state Fourteenth Amendment claim). “To hold otherwise would

diminish the civil rights statutes to the equivalent of a body of general federal tort law,

and open the courts to a flood of litigation which the framers of § 1983 clearly did not

intend.” Hill, 93 F.3d at 422.

As for Sheriff Hershberger, liability under 42 U.S.C. § 1983 is based on personal

responsibility, and he cannot be held liable merely because of his supervisory position.

Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009). There is no indication the Sheriff

was in the van or otherwise personally involved in this incident. Supervisory officials

can be held liable for a constitutional violation only if they “know about the conduct

and facilitate it, approve it, condone it, or turn a blind eye.” Doe v. Purdue Univ., 928

F.3d 652, 664 (7th Cir. 2019). As outlined above, Mr. Johnson has not plausibly alleged

that his constitutional rights were violated by Officer Shiling. Even if he had, there is

insufficient factual content from which the court could plausibly infer that Sheriff

Hershberger knew about any unconstitutional conduct and condoned it, facilitated it, or

approved of it.

Likewise, the Sheriff’s Department cannot be held liable simply because it

employed Officer Shiling at the time of this incident. J.K.J. v. Polk Cty., 960 F.3d 367, 377

(7th Cir. 2020). Mr. Johnson may be trying to assert a claim against the Sheriff’s

Department under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).

Under Monell, municipal entities “cannot be held liable for the unconstitutional acts of

their employees unless those acts were carried out pursuant to an official custom or

policy.” Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008) (citations omitted). “The

‘official policy’ requirement for liability under § 1983 is to distinguish acts of the

municipality from acts of employees of the municipality, and thereby make clear that

municipal liability is limited to action for which the municipality is actually

responsible.” Id. (citations and internal quotation marks omitted). A plaintiff pursuing

an official custom theory “must allege facts that permit the reasonable inference that the

practice is so widespread so as to constitute a governmental custom.” Gill v. City of

Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017).

There is insufficient factual content in the complaint from which the court could

plausibly infer that the Sheriff’s Department has adopted an official policy of causing

injury to inmates being transported in the jail van. See Dixon v. Cty. of Cook, 819 F.3d 343,

348 (7th Cir. 2016) (under Monell, plaintiff must allege that an official policy “was the

‘moving force’ behind his constitutional injury”). Nor has he plausibly alleged the

existence of an official custom by the Sheriff’s Department that violated his

constitutional rights. Flores v. City of S. Bend, 997 F.3d 725, 733 (7th Cir. 2021) (pointing

to “a few sporadic examples of an improper behavior” is not enough to establish an

official custom under Monell).

Therefore, his complaint does not state a claim upon which relief can be granted.

In the interest of justice, the court will allow him an opportunity to amend his

complaint if, after reviewing the court’s order, he believes he can state a plausible claim

based on this incident, consistent with the allegations he has already made under

penalty of perjury. See Abu-Shawish v. United States, 898 F.3d 726, 738 (7th Cir. 2018);

Luevano v. Wal-Mart, 722 F.3d 1014, 1024 (7th Cir. 2013).

For these reasons, the court:

(1) GRANTS the plaintiff until September 15, 2023, to file an amended

complaint; and

(2) CAUTIONS him that if he does not respond by the deadline, this case is

subject to dismissal under 28 U.S.C. § 1915A because the current complaint does not

state a claim upon which relief can be granted.

SO ORDERED on August 16, 2023.

s/ Holly A. Brady

JUDGE HOLLY A. BRADY

UNITED STATES DISTRICT COURT