The opinion of the court was delivered by: Reagan, District Judge
On April 24, 2007, Christopher Phelps filed suit against Gary Tyner, William Weir, Joshua Dunnigan and Marilyn Lynn, alleging that his constitutional rights were violated while he was a pretrial detainee at the Williamson County Jail in Marion, Illinois.*fn1 The action now proceeds on Phelps's second amended complaint (Doc. 47). The Court has broken down Phelps's Complaint into two general allegations - excessive force and denial of medical care.
Pending before the Court are Gary Tyner's motion to dismiss (Doc. 101) and Marilyn Lynn's motion for summary judgment (Doc. 111). Only Lynn's motion for summary judgment is opposed (Doc. 115).
In his motion to dismiss, Tyner challenges the sufficiency of Phelps's § 1983 claim pursuant to Rule 12(b)(6). Because Phelps is proceeding without representation, his allegations receive a liberal interpretation. Well-pleaded facts are accepted as true, and all inferences are drawn in his favor. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." Phelps must allege enough facts to suggest that there are plausible grounds for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Phelps's claim against Tyner arose on June 17, 2006. On that date, Phelps showered five to ten minutes before the scheduled 5:30 count. He was still in the shower when an announcement was made for inmates to lock up. When two jailers entered the cell block to perform the count, Phelps was returning to his cell. When one jailer instructed Phelps about jail procedure, Phelps uttered a verbal response. The jailer allegedly became aggravated and reacted by initiating a malicious physical attack on Phelps, assisted by the second jailer.
The allegations do not suggest that Tyner was present during or participated in the alleged hostile assault. Tyner is identified as a jail captain, which suggests that Phelps may be able to show that he supervised the two jailers involved in the incident. Phelps claims that Tyner knew these particular jail employees had used too much force against outspoken inmates in the past and made no effort to discipline them or otherwise correct their improper behavior. Tyner's failure to take disciplinary action against the jailers for past misconduct is identified as a proximate cause of Phelps's injuries.
Tyner argues that the allegations against him do not support liability under § 1983 because they do not show his personal involvement in a constitutional deprivation. In order to state a § 1983 claim, Phelps must describe conduct that deprived him of rights, privileges or immunities guaranteed by the Constitution or laws of the United States. Larsen v. Beloit, 130 F.3d 1278, 1282 (7th Cir. 1997). Because there is no liability on a theory of respondeat superior, the allegations must suggest that a supervisor knew about the offensive conduct and facilitated it, approved it, condoned it or turned a blind eye. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). "Liability depends on each defendant's knowledge and actions, not on the knowledge or actions of persons they supervise." Burks v. Raemisch, 555 F.3d 592, 594 (7th Cir. 2009). A supervisor who fails to detect and prevent subordinate misconduct is merely negligent, while a supervisor who knows about and participates in the conduct can be said to have caused the deprivation. Chavez v. Cady, 207 F.3d 901, 906 (7th Cir. 2000).
Giving the pro se allegations a liberal interpretation, Phelps can show that Tyner (1) knew these two jailers had used too much force against other inmates at some point in the past, (2) was in a position to discipline the jailers for their improper conduct, and (3) took no steps to discipline the jailers or otherwise prevent them from using too much force against inmates in the future. Phelps can also show that the jailers used too much force when they caused his injuries on June 17, 2006. While these allegations could support a claim of negligence, they do not support a claim of deliberate indifference. In particular, the allegations do not suggest that Tyner actually knew the jailers intended to attack and harm Phelps and authorized or condoned their actions. At most, Phelps can demonstrate that Tyner should have anticipated a future hostile assault. Yet, the simple failure to anticipate and prevent harm does not rise to the level of a constitutional deprivation.Daniels v. Williams, 474 U.S. 327, 331-32 (1986). For these reasons, the Court will grant Tyner's motion to dismiss (Doc. 101).
Defendant Lynn, a nurse, seeks judgment in her favor pursuant to Rule 56, claiming that no evidence supports a finding that she was deliberately indifferent to a serious medical need. Phelps claims that Lynn saw him on Monday, June 19, 2006, and heard him describe an injury to his arm. He submits that she performed a cursory examination of his bruised and swollen arm, and sent him back to his cell. Phelps contends that Lynn refused to order a diaganostic test that might have revealed a fracture and that she canceled his doctor appointment. Phelps also alleges that Lynn failed to provide him with any treatment for his painful arm injury (Doc. 47, pp. 7-10).
Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The facts resented are construed in the light most favorable to the non-moving party and all reasonable and justifiable inferences are drawn in favor of that party.See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). To survive a summary judgment motion, ...