# HARMON v. CARTER

> District Court, S.D. Indiana · September 4, 2019

URL: https://www.frixlaw.com/law-library/cases/10165623

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** September 4, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
Electronic Service Participant — Court Only

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10165623. Public record. Not legal advice.