HARMON v. CARTER

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

DAVID J. HARMON, )

)

Plaintiff, )

)

v. ) No. 1:19-cv-03281-JRS-MJD

)

ROBERT E. CARTER, )

DUSHAN ZATECKY, )

DUANE ALSIP, )

)

Defendants. )

ENTRY GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS,

DISMISSING COMPLAINT, DENYING MOTION FOR TEMPORARY RESTRAINING

ORDER, AND DENYING MOTION TO MAINTAIN SUIT AS CLASS ACTION

This matter is before the Court for resolution of three motions by Plaintiff David Harman1

and for screening of his complaint pursuant to 28 U.S.C. § 1915A(b).

I. Motion for Leave to Proceed In Forma Pauperis

Mr. Harman’s motion for leave to proceed in forma pauperis, dkt. [3], is granted to the

extent that he is assessed an initial partial filing fee of Twenty-Seven Dollars and Thirty-Three

Cents ($27.33). See 28 U.S.C. § 1915(b)(1). Mr. Harman shall have through October 4, 2019, to

pay this sum to the clerk of the district court.

Although Mr. Harman is excused from pre-paying the full filing fee, he still must pay the

three hundred and fifty dollar ($350.00) filing fee pursuant to the statutory formula set forth in 28

U.S.C. § 1915(b)(2) when able. See 28 U.S.C. § 1915(b)(1) (“the prisoner shall be required to pay

the full amount of a filing fee.”).

1 The plaintiff’s submissions indicate that his last name is spelled “Harman.” The clerk is directed to update

the docket accordingly

II. Screening and Dismissal of Complaint

Mr. Harman is a prisoner at the Pendleton Correctional Facility (Pendleton). He brings this

civil rights action under 42 U.S.C. § 1983. Because the plaintiff is a “prisoner” as defined by 28

U.S.C. § 1915A(c), this Court has an obligation under 28 U.S.C. § 1915A(b) to screen his

complaint before service on the defendants.

A. Screening Standard

Pursuant to § 1915A(b), the Court must dismiss the complaint if it is frivolous or malicious,

fails to state a claim for relief, or seeks monetary relief against a defendant who is immune from

such relief. In determining whether the complaint states a claim, the Court applies the same

standard as when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).

See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017). To survive dismissal,

[the] complaint must contain sufficient factual matter, accepted as true, to state a

claim for relief that is plausible on its face. 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.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se complaints such as that filed by the plaintiff

are construed liberally and held to “a less stringent standard than pleadings drafted by lawyers.”

Cesal, 851 F.3d at 720.

B. The Complaint

The complaint names the following defendants: 1) Commissioner Robert E. Carter; 2)

Warden Dushan Zatecky; and 3) Assistant Warden Duane Alsip. The plaintiff sues each defendant

in his individual and official capacity. He seeks compensatory and punitive damages and injunctive

relief.

The plaintiff alleges that Pendleton is overcrowded. He alleges that the Warden and

Assistant Warden have started double-bunking inmates. He also alleges that due to the

overcrowding and being on lockdown, medical treatments have been delayed and denied. He

alleges many inmates have suffered from delayed treatment.

The plaintiff further alleges that Pendleton is understaffed which has led to denials of

recreation and visitation. He alleges that violence among the prison inmates has increased. Also

on his list of complaints is the number of hours between meals, that the nutritional value of meals

is not adequate for grown men, and the kitchen equipment is not properly sanitized. Finally, he

complains that the Indiana Department of Correction (IDOC) has revised the grievance policies to

make it more difficult for inmates to complete the process. He alleges that these conditions violate

his Eighth Amendment rights.

C. Discussion

Pursuant to the Eighth Amendment, prison officials have a duty to provide humane

conditions of confinement, meaning, they must take reasonable measures to guarantee the safety

of the inmates and ensure that they receive adequate food, clothing, shelter, and medical care.

Farmer v. Brennan, 511 U.S. 825, 834 (1994). To state a claim under the Eighth Amendment, a

plaintiff must allege facts sufficient to support a claim that the “conditions of his confinement

resulted in the denial of the minimal civilized measure of life’s necessities, and that the defendants

were deliberately indifferent to the conditions in which he was held.” Gruenberg v. Gempeler, 697

F.3d 573, 579 (7th Cir. 2012) (internal quotations omitted).

The overarching problem with the plaintiff’s complaint is that he does not allege that he

has suffered any compensable injury as a result of overcrowding or the other conditions he

describes. Section 1983 allows for recovery only by a “party injured” by a “deprivation of any

rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983; see also

Armstrong v. Daily, 786 F.3d 529, 553 (7th Cir. 2015) (a plaintiff must “establish one of the

necessary elements of a constitutional tort: that the officer’s act . . . caused any injury.”) (internal

quotation omitted).

Double-bunking in prison is not per se unconstitutional. See Rhodes v. Chapman, 452 U.S.

337, 347–52 (1981); Heard v. Baldwin, 732 F. App’x 472 (7th Cir. 2018) (although plaintiff

alleged overcrowding, he did not allege that it “created a substantial risk of harm to him

individually and that prison officials knew about and ignored the risk.”) (emphasis added). The

plaintiff alleges no violence or other injuries that he suffered as a result of double-bunking and

overcrowding. The plaintiff’s double-bunking claim is dismissed for failure to state a claim

upon which relief can be granted.

While the plaintiff alleges generally that inmates are being denied adequate and timely

medical care, he does not allege that he has been denied any specific treatment. “It is true that

delays in care for non-life-threatening but painful conditions may constitute deliberate indifference

if the delay exacerbated the injury or unnecessarily prolonged an inmate’s pain.” Mitchell v.

Kallas, 895 F.3d 492, 500 (7th Cir. 2018) (internal quotation omitted). “Yet prisons have limited

resources, and that fact makes some delay inevitable.” Id. “For a delay in treatment to qualify as

deliberate indifference, we must weigh the seriousness of the condition and the ease of providing

treatment.” Id. (internal quotation omitted). Absent an allegation that the plaintiff has a serious

medical condition and has been denied necessary treatment, he cannot state a viable Eighth

Amendment claim for deliberate indifference. The plaintiff’s denial of medical care claim is

dismissed for failure to state a claim upon which relief can be granted.

While nutritional food and opportunity for exercise are two of life’s necessities, the

plaintiff has not alleged that he has been denied meals on a regular basis, lost weight as a result of

lack of food, been denied access to the commissary to purchase additional food, or been denied

the ability to exercise in or outside of his cell. Again, because he has not alleged that he has suffered

these or other types of harm, his inadequate food and recreation claims are dismissed for failure

to state a claim upon which relief can be granted.

With respect to the change in the IDOC grievance policies, no action lies under § 1983

unless a plaintiff has asserted the violation of a federal right. See Middlesex County Sewage Auth.

v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 19 (1981); Waubanascum v. Shawano County, 416 F.3d

658, 670 (7th Cir. 2005) (neither negligence nor a violation of state law provide a basis for liability

under § 1983); J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 793 (7th Cir. 2003) (“State law

violations do not form the basis for imposing § 1983 liability.”); Juriss v. McGowan, 957 F.2d

345, 349 n.1 (7th Cir. 1992) (without a predicate constitutional violation one cannot make out a

prima facie case under § 1983). The plaintiff’s allegations of violations of or changes in IDOC

policy does not support a claim under section 1983 and are therefore dismissed for failure to state

a claim upon which relief can be granted.

Finally, the complaint contains no allegations of personal wrongdoing on the part of

Commissioner Carter. “Individual liability under § 1983 . . . requires personal involvement in the

alleged constitutional deprivation.” Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017)

(internal quotation omitted) (citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)

(“Section 1983 creates a cause of action based on personal liability and predicated upon fault. An

individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged

constitutional deprivation . . . . A causal connection, or an affirmative link, between the misconduct

complained of and the official sued is necessary.”)). Any claim against Commissioner Carter is

dismissed for failure to state a claim upon which relief can be granted.

For these reasons, the complaint must be dismissed for failure to state a claim upon

which relief can be granted. See 28 U.S.C. § 1915A(b).

III. Motion to Maintain Suit as a Class Action

A non-attorney cannot bring claims on behalf of anyone else in federal court. See

Georgakis v. Illinois State University, 722 F.3d 1075, 1077 (7th Cir. 2013) (“A nonlawyer can’t

handle a case on behalf of anyone except himself.”). To certify a class, a plaintiff must establish,

among other things, that he will “fairly and adequately protect the interests of the class.” Fed. R.

Civ. P. 23(a). In nearly all instances, a pro se prisoner will not be an adequate class representative.

See Howard v. Pollard, 814 F.3d 476, 478 (7th Cir. 2015) (“[I]t is generally not an abuse of

discretion for a district court to deny a motion for class certification on the ground that a pro se

litigant is not an adequate class representative.”). Here, the complaint is being dismissed for failing

to state a claim upon which relief can be granted. For that reason and because the plaintiff is pro

se, the plaintiff’s motion to maintain suit as a class action, dkt. [5], is denied.

IV. Motion for Temporary Restraining Order

The plaintiff’s motion for a temporary restraining order, dkt. [4], is denied. In determining

whether to grant preliminary injunctive relief, the Court must consider whether the plaintiff is

likely to succeed on the merits of his complaint. Grace Schools v. Burwell, 801 F.3d 788, 795 (7th

Cir. 2015), judgment vacated and remanded on other grounds, 136 S. Ct. 2011 (2016). Because

the plaintiff’s complaint has been dismissed for failure to state a claim upon which relief may be

granted, the Court cannot conclude at this time that the plaintiff is likely to prevail on any of his

claims.

V. Order to Show Cause

As noted, the plaintiffs complaint must be dismissed for the reasons set forth above. The

plaintiff shall have through October 4, 2019, to either show cause why Judgment consistent with

this Entry should not issue or file an amended complaint which cures the deficiencies discussed in

this Entry. Any amended complaint would completely replace the original complaint and therefore

must be complete. See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1022 (7th Cir. 2013)

(“Without at least an opportunity to amend or to respond to an order to show cause, an IFP

applicant’s case could be tossed out of court without giving the applicant any timely notice or

opportunity to be heard to clarify, contest, or simply request leave to amend.”). Any amended

complaint must include the words “First Amended Complaint” and the proper case number, 1:19-

cv-03281-JRS-MJD, on the first page.

If the plaintiff fails to respond to this order to show cause, the case will be dismissed in

accordance with 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief can be granted,

without further notice.

IT IS SO ORDERED.

Date: _ 9/4/2019

JAMES R. SWEENEY II, JUDGE

United States District Court

Southern District of Indiana

Distribution:

DAVID J. HARMAN

231831

PENDLETON — CF

PENDLETON CORRECTIONAL FACILITY

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