Lawler v. Marshall, C-1-84-1819.

• Decision Date: 30 October 1987
• Docket Number: No. C-1-84-1819.,C-1-84-1819.
• Citation: 687 F. Supp. 1176
• Parties: Richard G. LAWLER, Plaintiff, v. Ronald C. MARSHALL, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

687 F. Supp. 1176

Richard G. LAWLER, Plaintiff, v. Ronald C. MARSHALL, et al., Defendants.

No. C-1-84-1819.

United States District Court, S.D. Ohio, W.D.

October 30, 1987.

Richard G. Lawler, Lucasville, Ohio, pro se.

Chris Stegeman, Asst. Atty. Gen., Cincinnati, Ohio, for defendants.

ORDER

HERMAN J. WEBER, District Judge.

This matter is before the Court upon the Report and Recommendation of the United States Magistrate (doc. no. 100) and the plaintiff's Motion to Review (doc. no. 102).

This Court concurs in the Magistrate's presentation of the facts alleged by plaintiff in his original Complaint and two Amended Complaints. As it appears, so does plaintiff.

This Court also concurs in and adopts the legal reasoning and conclusions of fact and law underlying the recommendation to deny the plaintiff's Motions for Leave to File Second and Third Amended Complaints.

The standards for dismissal of a complaint as frivolous under § 1915(d) and dismissal for failure to state a claim upon which relief can be granted under Fed.R. Civ.P. 12(b)(6) are identical in this circuit. Harris v. Johnson, 784 F.2d 222, 224 (6th Cir.1986); Malone v. Colyer, 710 F.2d 258, 261 (6th Cir.1983). An action is frivolous under § 1915(d) if it appears beyond doubt that plaintiff can prove no set of facts which would entitle him to relief. Spruytte v. Walters, 753 F.2d 498, 500-01 (6th Cir.1985); Malone, 710 F.2d at 261; see also Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 175-76, 66 L.Ed.2d 163 (1980).

The eighth amendment provides prisoners with a right to be free from attacks by fellow inmates. In order to state such a claim under § 1983, plaintiff must allege facts which indicate that defendants were wanton, reckless or deliberately indifferent in dealing with a pervasive risk of harm to plaintiff. Martin v. White, 742 F.2d 469, 474 (8th Cir.1984); Little v. Walker, 552 F.2d 193 (7th Cir.1977), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 530 (1978); Curtis v. Everette, 489 F.2d 516 (3d Cir.1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974). See also Stewart v. Love, 696 F.2d 43 (6th Cir.1982); Holmes v. Goldin, 615 F.2d 83 (2d Cir.1980). Plaintiff "must show something more than mere inadvertence or negligence. He must show the defendants were deliberately indifferent to his Constitutional rights, either because they actually intended to deprive him of some right, or because they acted with reckless disregard of his right to be free from violent attacks by fellow inmates." Branchcomb v. Brewer, 669 F.2d 1297, 1298 (8th Cir.1982).

In other words, a plaintiff must be able to prove that defendants were wanton, reckless or deliberately indifferent in dealing with a pervasive risk of harm which involves and violates plaintiff's Constitutional rights. The facts alleged by plaintiff, in this case, taken in a light most favorable to him, present the following situation: an inmate, assigned to go around with coffee and milk and to clean the cells and showers, was in those areas and threw those liquids onto plaintiff at which point the defendant guards were made aware of it and probably did not report it. Except for the "kites" of October 8th, there is absolutely no evidence that they were deliberately indifferent. While it may rise to a degree of negligence to allow one of the less stable inmates to be porter, it does not rise to the level of gross negligence which the Court defines as wantonness or recklessness. One attack cannot be regarded as a pervasive risk of harm and the incident described does not rise to the level of force contemplated by the Courts in an Eighth Amendment claim.

As to the liability of supervisory personnel, plaintiff must prove that the supervisor encouraged in the specific incident of misconduct or in some other way directly participated in it. Bellamy v. Bradley, 729 F.2d 416 (6th Cir.1984); Hays v. Jefferson County, 668 F.2d 869 (6th Cir.), cert. denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982).

Although the fact that the prison officers did not respond to the October 8th "kites" in any manner is somewhat disconcerting, this Court finds that in the day to day running of a correctional facility, it would be unreasonable to expect officials to respond to requests based on vague allegations such as those contained in the "kites."

Further, the attack itself was an isolated event and one not specifically described in the "kites." Prison officials were alerted to the possibility of an attack on any of 39 prisoners on this range, never that it would definitely be directed against plaintiff.

In Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983), the Supreme Court...