COUNCIL v. GARLAND

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

BRANDON MICHAEL COUNCIL, )

)

Plaintiff, )

)

v. ) No. 2:21-cv-00302-JPH-MKK

)

GINA SACCHETTI, )

THOMAS J. WATSON, )

)

Defendants. )

Order Granting Motion for Leave to File Verified Third Amended Complaint,

Denying Motion to Dismiss Second Amended Complaint as Moot,

and Screening Third Amended Complaint

Plaintiff Brandon Michael Council is a death row inmate at United States Penitentiary Terre

Haute. He has sued Gina Sacchetti and Thomas Watson under the Eighth Amendment

alleging deliberate indifference to his serious medical needs. For the reasons explained below the

motion for leave to file a third amended complaint, dkt [56], is granted, the motion to verify

the third amended complaint, dkt [64], is granted, and the motion to dismiss the second amended

complaint for failure to state a claim, dkt [41], is denied as moot. Finally, the Third Amended

Complaint is screened as required by 28 U.S.C. § 1915A(a).

I. Third Amended Complaint

Mr. Counsel filed a second amended complaint alleging, among other things, deliberate

indifference to a serious medical need, and requesting injunctive relief and $400 million in

compensatory damages. On December 20, 2021, the Court issued an Order screening that

complaint. Dkt. 23. The Court allowed Mr. Council's Eighth Amendment claims alleging

deliberate indifference to a serious medical need to proceed against Warden Thomas J. Watson

and Psychologist Dr. Gina Sacchetti. Id. The Court dismissed Mr. Council's claims against Merrick

Garland, Jeff Sessions, R. Bryan Harwell, Nathan Williams, Everett McMillan, and Derek

Shoemake. Id.

Mr. Council has filed a motion for leave to file a third amended complaint. Dkt. 56.

The proposed third amended complaint omits the previously dismissed claims against Garland,

Sessions, Harwell, Williams, McMillian, and Shoemake. Dkt. 56-1. It also omits claims for

injunctive relief against Watson and Sacchetti, instead seeking $100 million in compensatory

damages as an exclusive remedy. Id. at 7. The substance of the factual allegations against Watson

and Sacchetti with respect to Mr. Council's deliberate indifference claims have not changed.

Compare id. (proposed third amended complaint) with dkt. 21 (second amended complaint).

The defendants have not filed a response in opposition to this motion.

The unopposed motion for leave to file a third amended complaint, dkt. [56], is granted.

The clerk is directed to redocket the proposed third amended complaint, dkt. [56-1], as the third

amended complaint.

Mr. Council has filed a motion to verify the third amended complaint under penalty of

perjury. This motion, dkt. [64], is granted to the extent that Mr. Council may cite to statements

in the third amended complaint in relation to a future motion for summary judgment. See Beal v.

Beller, 847 F.3d 897, (7th Cir. 2017) ("a verified complaint is not just a pleading; it is also the

equivalent of an affidavit for purposes of summary judgment, because it contains factual

allegations that if included in an affidavit or deposition would be considered evidence, and not

merely assertion.") (internal quotations removed).

Given the filing of a Third Amended Complaint, Warden Watson's motion to dismiss the

previous complaint is denied as moot. Dkt. [41].

III.Screening of Third Amended Complaint

Because Mr. Council is a "prisoner," the Court screens his third amended complaint under

28 U.S.C. § 1915A(a). For the reasons explained below, Mr. Council's Eighth Amendment claims

for compensatory damages shall proceed against Thomas J. Watson and Gina Sacchetti.

A. Standard of Review

When screening a complaint, the Court must dismiss any portion that is frivolous or

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

immune from such relief. 28 U.S.C. § 1915A(b). To determine 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 Schillinger v. Kiley, 954 F.3d 990, 993 (7th Cir. 2020).

Under that standard, a complaint must include "enough facts to state a claim to relief that is

plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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). The Court construes pro se complaints liberally and holds them to a "less stringent

standard than formal pleadings drafted by lawyers." Cesal v. Moats, 851 F.3d 714, 720 (7th Cir.

2017).

B. Allegations

The third amended complaint makes the following allegations. On November 4, 2019, Mr.

Council was transferred to the Special Confinement Unit at USP Terre Haute. Dkt. 56-1 at p. 4.

Since that time, Mr. Council has:

Allege[d] and contend[ed] through the inmate grievance process that [he has] been

subjected to Torture which has caused irreparable psychological harm by the overly

restrictive conditions of confinement and the inadequate, insufficient mental health

treatment by Terre Haute Special Confinement Unit Psychologist Mrs. Gina

Sacchetti. Mr. Thomas J. Watson is the complex Warden at the Terre Haute Special

Confinement Unit and the respondent to all inmate grievances submitted at the

institutional level. Mr. Watson is party to this complaint because he has failed to

provide an appropriate remedy to issues regarding physical and psychological harm

pertaining to my current and ongoing conditions of solitary confinement.

Id. at 4.

C. Eighth Amendment Standard

To determine if the Eighth Amendment has been violated in the prison medical context,

courts perform a two-step analysis, first examining whether a plaintiff suffered from an objectively

serious medical condition, and then determining whether the individual defendant was deliberately

indifferent to that condition. Peterson v. Wexford Health Sources, Inc., 986 F.3d 746, 751 (7th Cir.

2021) (citing Petties v. Carter, 836 F.3d 722, 727-28 (7th Cir. 2016) (en banc); Farmer v. Brennan,

511 U.S. 825, 834 (1994)).

In general, a plaintiff satisfies the objective component of the deliberate indifference

inquiry with evidence that a physician has diagnosed a medical condition as requiring treatment,

"or the need for treatment would be obvious to a layperson." Jones v. Matthews, 2 4th 607, 612

(7th Cir. 2021). To satisfy this subjective step, the complaint must allege that the defendant acted

with a "sufficiently culpable state of mind." Farmer, 511 U.S. at 834. This entails "something more

than mere negligence" but "something less than acts or omissions for the very purpose of causing

harm or with knowledge that harm will result." Peterson, 986 F.3d at 752.

The complaint does not identify a specific medical condition that Mr. Council suffers from.

However, the complaint does allege that the psychological harm he experiences is akin to torture,

that Dr. Sacchetti has failed to provide him with a psychological evaluation, and that he has been

denied psychiatric medication. Dkt. 56-1 at 4 and 6. It is well-established that psychiatric

conditions and psychological distress may qualify as serious medical conditions for purposes of

the Eighth Amendment. E.g., Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996) (holding

that an inmate of the Cook County Jail stated an Eighth Amendment denial-of-medical-care claim

"in that his 'pleas' for psychological treatment were 'ignored.'"). Liberally construed, the third

amended complaint plausibly states that Mr. Council's psychological harm rises to the level of a

serious medical condition because the complaint alleges that this harm is akin to torture.

The third amended complaint also alleges sufficient facts to support that Ms. Sacchetti and

Warden Watson had knowledge of Mr. Council's condition. The third amended complaint alleges

that after his transfer to the Special Confinement Unit at USP Terre Haute, Mr. Council alleged

and contended "[t]hrough use of the Bureau of Prisons inmate grievance process . . . that I have

been subjected to Torture which has caused irreparable psychological harm by the overly

restrictive conditions of confinement and the inadequate, insufficient mental health treatment by

Terre Haute Special Confinement Unit." Dkt. 56-1 at p. 4. The third amended complaint also states

that Warden Watson reviews "all inmate grievances submitted at the institutional level." Id. This

necessarily includes the grievance Mr. Council submitted complaining about psychological harm.

By alleging that Warden Watson reviewed Mr. Council's grievance, the complaint plausibly states

that Warden Watson was aware that Mr. Council was experiencing psychological harm due to the

conditions of the Special Confinement Unit.

Finally, the third amended complaint alleges facts sufficient to conclude that the defendants

were deliberately indifferent to Mr. Council's serious mental health needs. Ms. Sacchetti is alleged

to be a direct treatment provider. Meanwhile, Warden Watson allegedly "failed to provide an

appropriate remedy to issues regarding physical and psychological harm pertaining to [Mr.

Council's] current and ongoing conditions of solitary confinement." Dkt. 56-1 at p. 4. The alleged

consequence of that failure is that the conditions of Mr. Council's confinement have not changed

and that he continues to suffer psychological harm akin to torture. This alleged failure to remedy

Mr. Council's psychological harm plausibly states that Warden Watson was deliberately indifferent

to Mr. Council's psychological harm. "Indeed, once an official is alerted to an excessive risk to

inmate safety or health through a prisoner's correspondence, refusal or declination to exercise the

authority of his or her office may reflect deliberate disregard." Perez v. Fenoglio, 792 F.3d 768,

782 (2015) (cleaned up) (reversing dismissal for prison grievance officers who allegedly failed to

act within their authority after reviewing the plaintiff's detailed medical grievance).

The questions whether Mr. Council's psychological harm is as serious as he alleges,

whether Warden Watson had actual knowledge of Mr. Council's psychological harm, and whether

Warden Watson reasonably deferred to the advice of medical professionals require further factual

development, making a dismissal for failure to state a claim at screening inappropriate. See

McGowan v. Hulick, 612 F.3d 636, 640-41 (7th Cir. 2010) (holding that the district court was "too

hasty in dismissing the claim against" a prison dental director for delays in treatment "especially

given its duty to construe [the] pro se complaint liberally," but recognizing that "a more complete

examination of the facts" might ultimately show that the alleged treatment delays did not reflect

deliberate indifference on the part of the defendant).

D. Screening Summary

Having applied the liberal screening standard set forth above, Mr. Council's Eighth

Amendment damages claims alleging deliberate indifference to a serious medical need

shall proceed against Warden Watson and Dr. Sacchetti in their individual capacities under the

theory set forth in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971) and Carlson v. Green, 446 U.S. 14 (1980). No other viable claims were

identified by the court.

The defendants shall answer or otherwise respond to the third amended complaint within

14 days of the issuance of this Order.

IV. Conclusion

The motion for leave to file a third amended complaint, dkt [56], is granted.

The motion to verify the third amended complaint, dkt [64], is granted.

The clerk is directed to re-docket the proposed third amended complaint, dkt. [56-1], as

the third amended complaint.

The motion to dismiss the second amended complaint for failure to state a claim, dkt [41],

is denied as moot.

The Third Amended Complaint has been screened as required by 28 U.S.C. § 1915A(a).

Mr. Council's Eighth Amendment damages claims alleging deliberate indifference to a serious

medical need shall proceed against Warden Watson and Dr. Sacchetti in their individual

capacities. The defendants shall answer or otherwise respond to the third amended complaint

within 14 days of the issuance of this Order.

SO ORDERED.

Date: 3/14/2023

SJamu Patrick banter

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

Brandon Michael Council

Inmate No. 63961-056

TERRE HAUTE - USP

TERRE HAUTE U.S. PENITENTIARY

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P.O. BOX 33

TERRE HAUTE, IN 47808

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