United States District Court, C.D. Illinois
FREDERICK S. HARRIS, Plaintiff,
NICHOLAS MOLENERO, et al., Defendants.
MERIT REVIEW -AMENDED COMPLAINT
MICHAEL M. MIHM UNITED STATES DISTRICT JUDGE
proceeding pro se, files an amended complaint under §
1983 alleging deliberate indifference and failure to protect
at the Pontiac Correctional Center. The case is before the
Court for a merit review pursuant to 28 U.S.C. § 1915A.
In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in
Plaintiff's favor. Turley v. Rednour, 729 F.3d
645, 649-51 (7th Cir. 2013). However, conclusory statements
and labels are insufficient. Enough facts must be provided to
“state a claim for relief that is plausible on its
face.” Alexander v. United States, 721 F.3d
418, 422 (7th Cir. 2013)(citation and internal quotation
marks omitted). While the pleading standard does not require
“detailed factual allegations”, it requires
“more than an unadorned,
Wilson v. Ryker, 451 Fed.Appx. 588, 589 (7th Cir.
2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
amended complaint realleges that inmate Bell had threatened
to “blast” Plaintiff by throwing feces on him. On
November 22, 2015, Plaintiff sent a message to counselor,
Travis Baylor, informing him of the threat. Later that day,
Defendant Molenero came to take Plaintiff downstairs so his
legal papers could be notarized. Plaintiff informed Defendant
Molenero of Bell's threat. Plaintiff walked past
Bell's cell without incident. On the return trip,
however, Bell allegedly “blasted him” with two
milk cartons of liquid feces.
was taken to a sink to rinse off and then taken to the
shower. He was subsequently seen in the medical unit by
Defendant Eshelman. Defendant Eshelman used a squeeze bottle
to flush out his eyes. Plaintiff claimed that his eyes
continued to burn and asked to be seen by a doctor. Defendant
Eshelman allegedly told them that she had spoken to Dr.
Tilden about him and there was nothing else to be done.
Plaintiff asserts in his amended complaint that he now
believes Bell mixed another substance with the feces and that
this substance was causing his eyes to burn.
claims that when he awoke the next day, his vision was blurry
and that his eyes were sore and irritated. He asked Defendant
Nurse Schertz to schedule him to be seen by an eye doctor,
and she refused. Plaintiff was not seen by an eye doctor
until 30 days later. When he was seen, it was noted that a
lens implant in his left eye was dislocated, allegedly
resulting in the blurred vision and discomfort.
alleges deliberate indifference against Dr. Tilden, but
directs no allegations toward him, so Dr. Tilden is
dismissed. Plaintiff's claim that Defendant Schertz
failed to respond to his complaints of blurred vision will go
forward. Plaintiff adds the newly asserted claim that the
feces likely contained another substance which caused the
burning in his eyes. It is not clear whether he relayed this
to nurse Eshelman but this claim against her will go forward,
pending a more fully developed record.
reasserts his claim that Defendants Prentice, Baylor, Pearce,
McClanahan, Wilson and Baldwin knew of inmate Bell's
propensities and failed to protect him. Plaintiff claims he
sent a letter about Bell's threat to Defendant Baylor.
However, writing a letter informing an official of
unconstitutional conduct does not make the official liable
for conduct. See Diaz v. McBride, 1994 WL 750707, at
*4 (N.D. Ind. Nov. 30, 1994) (holding that a plaintiff could
not establish personal involvement, and subject a prison
official to liability under section 1983, merely by sending
the official various letters or grievances complaining about
the actions or conduct of subordinates.)
claims that Defendants Prentice, Baylor, Pearce, McClanahan,
Wilson and Baldwin were liable as they knew that Bell had a
history of throwing feces is not enough to establish that
they were aware of a specific threat to Plaintiff. See
Brown v. Budz, 398 F.3d 904, 909 (7th Cir. 2005)
(policymaking defendants should be dismissed if they had only
knowledge of general risks of violence rather than a specific
risk posed to a particular detainee) (internal citation
omitted). The “mere possibility of violence” or
the occurrence of a random act of violence is not sufficient
to impose liability on prison officials. Miller v.
Turner, 26 Fed.Appx. 560 (7th Cir. 2001). The failure to
protect claim will proceed against Defendants Molenero and
Baylor, only. Defendants Prentice, Baylor, Pierce, Wilson,
McClanahan, and Baldwin are DISMISSED.
IS THEREFORE ORDERED:
case shall proceed solely on the alleged failure to protect
by Defendants Molenero and Baylor and deliberate indifference
by Defendants Schertz and Eshelman. The clerk is to reinstate
Kristi Eshelman and Travis Baylor as a Defendant. Defendants
Tilden, Prentice, Baylor, Pierce, Wilson, McClanahan and
Baldwin were DISMISSED on 12/23/2016. Any claims not
identified will not be included in the case, except in the
Court's discretion upon motion by a party for good cause
shown, or by leave of court pursuant to Federal Rule of Civil
Clerk is directed to send to each Defendant pursuant to this
District's internal procedures: 1) a Notice of Lawsuit
and Request for Waiver of Service; 2) a Waiver of Service; 3)
a copy of the Complaint; and 4) a copy of this Order.
3. If a
Defendant fails to sign and return a Waiver of Service to the
Clerk within 30 days after the Waiver is sent, the Court will
take appropriate steps to effect formal service on that
Defendant and will require that Defendant pay the full costs
of formal service pursuant to Federal Rule of Civil Procedure
4(d)(2). If a Defendant no longer works at the address
provided by Plaintiff, the entity for which Defendant worked
at the time identified in the Complaint shall provide to the
Clerk Defendant's current work address, or, if not known,
Defendant's forwarding address. This information will be
used only for purposes of effecting service. Documentation of
forwarding addresses will be maintained only by the Clerk and
shall not be maintained in the public docket nor disclosed by
Defendants shall file an answer within the prescribed by
Local Rule. A Motion to Dismiss is not an answer. The answer
it to include all defenses appropriate under the Federal
Rules. The answer and subsequent pleadings are to address the
issues and claims identified in this Order.
Plaintiff shall serve upon any Defendant who has been served,
but who is not represented by counsel, a copy of every filing
submitted by Plaintiff for consideration by the Court, and
shall also file a certificate of service stating the date on
which the copy was mailed. Any paper received by a District
Judge or Magistrate Judge that has not been filed with ...