Cameron v. Metcuz

• Decision Date: 10 February 1989
• Docket Number: Civ. No. S 88-436.
• Citation: 705 F. Supp. 454
• Parties: Terry Lee CAMERON, Jr., Plaintiff, v. Anthony METCUZ; G. Michael Broglin; and Daniel R. McBride, Defendants.
• Court: U.S. District Court — Northern District of Indiana

705 F. Supp. 454

Terry Lee CAMERON, Jr., Plaintiff, v. Anthony METCUZ; G. Michael Broglin; and Daniel R. McBride, Defendants.

Civ. No. S 88-436.

United States District Court, N.D. Indiana, South Bend Division.

January 31, 1989.

As Corrected February 10, 1989.

Terry L. Cameron, Jr., Westville, Ind., pro se.

John M. White, Deputy Atty. Gen., Indianapolis, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I.

On July 18, 1988, plaintiff pro se, Terry Lee Cameron, Jr., filed a complaint purporting to state a claim under 42 U.S.C. § 1983, and invoking this court's jurisdiction under Title 28 U.S.C. §§ 1331, 1343(a)(3) and (4). The motion to dismiss filed by defendants on September 12, 1988, demonstrates the necessary compliance with the mandates of Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982).

Plaintiff states three specific allegations which are set forth below in the plaintiff's own words:

(1) The Administration of the Westville Correctional Center has acted in an indifferent and callous manner.

(2) Their acts have led to a substantial harm to the Plaintiff by not protecting him from an attack by another inmate who was diagnosed as posotive (sic) for Acquired Immune Deficiency Syndrome (A.I.D.S.).

(3) The attack was pre-meditated and intentional, inflicting a bite wound, which, in light of the persons (sic) communicable and highly contagious disease has injured the Plaintiff in a manner which is of serious dimensions.

The administration, in knowing the character nature of the infected individual, of his violent and promiscuous institutional conduct in the past, acted in a "deliberate" and "callous" disregard for the Plaintiff's personal safety.

Plaintiff states an elaborate explication of his claims in Part V of his complaint. The same is set forth in the plaintiff's own words, as follows:

V. FACTUAL ALLEGATIONS

16. On June 14, 1988, at approximately 11:30 A.M., Plaintiff Cameron was in his bunk area when two inmates, Tillman Stroud # 854306, and Tony Hiter, began arguing loudly.

17. Plaintiff Cameron asked Stroud and Hiter to take the loud boisterous arguing away from his bunk area as the noise disturbed him.

18. On June 21, 1988, at approximately 1:00 P.M., Plaintiff Cameron was waiting on the "sun porch" of Dorm 7, G.S.C. Unit, waiting for his work assignment foreman to arrive, when inmate Stroud entered the sunporch, and without provocation attacked the Plaintiff.

19. Inmate Stroud merely wrestled until he obtained a firm grasp on Plaintiff's arm, and then "bit into" Plaintiff's index finger

20. Inmate Stroud maintained the hold on Plaintiff's arm and continued to bite into his finger until the wound was bone deep.

21. Plaintiff Cameron retaliated in a like manner and also only superficially bit inmate Stroud, who then released his grasp and "bite-hold."

22. The altercation then broke-up, with Inmate Stroud making it plain he "got-him", and that his act was totally premeditated and intentional.

23. On June 21, 1988, at approximately 10:15 P.M., Plaintiff Cameron went to the dispensary, and to avoid disciplinary after-effects for fighting, merely informed them the bone deep wound was caused by an accident where his finger was caught in a door.

24. On June 22, 1988, at 9:00 A.M. inmate Stroud was treated for the superficial wound he sustained, and the administration in the dspinsary (sic), once seeking his medical condition, demanded, on the threat to "lock him up" to explain the entire story.

25. On June 22, 1988, at approximately 2:00 P.M., Plaintiff Cameron was called to the dispensary, and informed that he must take a tetanus shot, and antibiotics.

26. On June 23, 1988, Plaintiff Cameron was called again to the dispensary, and was then told he must take a Hepatitis shot, and an increased dosage of antibiotics, and was told by Dr. Brodkin that the individual that had bitten him was affected (sic) with some type of Hepatitis.

27. On June 29, 1988, Wednesday, at approximately 11:00 A.M. Plaintiff Cameron was called again to the dispensary, and was met there by Defendant Metcuz (sic)¹ Defendant McBride, and an unknown R.N., along with Dr. Brodkin. Plaintiff Cameron was told at this time that it was possible he may have contracted the A.I.D.S. virus, and explained that inmate Stroud #854306 had been diagnosed before the altercation as a carrier of the virus.

28. Under the law of the State, pursuant to IC XX-XX-X-X(1), the Defendants herein are under the legal duty to provide a (sic) enviroment (sic) free from threat and physical danger.

29. The Defendants knew, or should have known that the inmate Tillman Stroud # 854306, was a predatory, violent, and dangerous individual, who in spite of this character nature, was allowed to remain within general population affected (sic) with a contagious and terminal disease.

30. The Defendants, individually and jointly, were negligent to their duties, to an extent that it became a "callous" and also a "deliberate" indifference to the Plaintiff's personal safety and well being.

31. To further the claims of indifference, it was known to the Defendants that inmate Stroud's institutional behavior pointed to the nature of his character, and he had been involved in, and disciplined for, many infractions relating to weapons and assaultive related behavior.

32. Inmate Tillman was incarcerated for a crime of violence, and past criminal history bespeaks his violent and aggressive nature.

33. Under the law, and promulgated policies within the Indiana Department of Corrections, an inmate who is infected with a contagious disease is to be segregatd from the general population on a showing that his behavior may be "predatory or promiscuous." Pursuant to IC XX-XX-X-X, and Health Care Policies promulgated by the department.

34. At all times mentioned herein in this complaint the Defendants acted under the color of state law. They are being sued in their individual and official capacity.

This court is well aware of its obligation to give the plaintiff the benefit of the doubt under Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). In this circuit see Abdul-Wadood v. Duckworth, 860 F.2d 280 (7th Cir.1988), and Knox v. Cook County Sheriff's Police Dept., 866 F.2d 905 (7th Cir.1988). In this regard, it must be stated that the complaint is in a good lawyer-like form, of which this court is grateful. This court is especially impressed with the plaintiff's motion in opposition to defendants' motion to dismiss filed on October 19, 1988.

II.

The defendants in this case are Anthony Metzcus, Director of Medical Services at the Westville Correctional Center (WCC), G. Michael Broglin, Superintendent of the WCC, and Daniel R. McBride, Director of General Services Complex at the WCC. In their official capacities, each of the state defendants is entitled to immunity for claims for money damages under the Eleventh Amendment of the Constitution of the United States. The Eleventh Amendment states as follows:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

See Kashani v. Purdue University, et al., 813 F.2d 843 (7th Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 141, 98 L.Ed.2d 97 (1987); Owen v. Lash, 682 F.2d 648 (7th Cir.1982); and Sheets v. Indiana Department of Corrections, 656 F.Supp. 733 (S.D. Ind.1986). For recent authority consistent with Kashani, supra, see Shannon v. Bepko, 684 F.Supp. 1465 (S.D.Ind.1988). Therefore, any and all damage claims against defendants in their official capacities are now DISMISSED under the mandates of the Eleventh Amendment of the Constitution.

III.

It is elementary that a level of personal involvement by the defendant must be alleged. The decisional law is clear that there must be individual participation and involvement by a defendant, and that the concept of respondeat superior cannot be the basis of a claim under § 1983. See Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Rascon v. Hardiman, 803 F.2d 269 (7th Cir.1986); Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984); Duncan v. Duckworth, 644 F.2d 653 (7th Cir.1981); and Adams v. Pate, 445 F.2d 105 (7th Cir.1971). With regard to defendant Broglin, there is no allegation of his personal involvement. Therefore, all damage claims against him are now DISMISSED. SO ORDERED.

IV.

Given the status of the plaintiff as a pro se party, the court is reluctant to dismiss defendants Metzcus and McBride at this time on the basis of non-involvement, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Fed.R.Civ.P.). The question is admittedly a very close one and a doubt is resolved in favor of the pro se plaintiff.

It is also elementary that a claim for negligence is not within the ambit of § 1983 under the cases of Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), and Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The court must take a preliminary hard look at this case to determine whether enough has been alleged to hold either defendant Metzcus or McBride responsible under the Eighth Amendment of the Constitution of the United States, as made applicable to the states in the Fourteenth Amendment of the Constitution of the United States.

This case is on the cutting edge of situations in which the parameters of deliberate indifference can be established in the context of inter-inmate violence. The most recent decision on this subject is Goka v. Bobbitt, 862 F.2d 646, 649-50 (7th Cir.1988), in which Judge Grant states as follows:

Originally designed to protect federal prisoners from barbarous treatment at the hands of their jailors, the Eighth Amendment prohibition against cruel and unusual punishment has been

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