United States District Court

Northern District of Indiana

ROBERT L. CALDWELL, )

)

Plaintiff, )

)

v. ) Civil Action No. 3:14-CV-1503 JVB

)

MARK LEVENHAGEN, et al., )

)

Defendants. )

OPINION AND ORDER

Robert L. Caldwell, a pro se prisoner, filed a complaint under 42 U.S.C. § 1983. (DE 1.)

Pursuant to 28 U.S.C. § 1915A, the court must review a prisoner complaint and dismiss it if the

action is frivolous or malicious, fails to state a claim, or seeks monetary relief against a

defendant who is immune from such relief. To survive dismissal, a complaint must state a claim

for relief that is plausible on its face. Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d 599,

602-03 (7th Cir. 2009). “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.” Id. at 603. Nevertheless, the court must bear in mind that a pro se

complaint is entitled to liberal construction, “however inartfully pleaded.” Erickson v. Pardus,

551 U.S. 89, 94 (2007).

Here, Caldwell alleges that he is a member of a prison “organization” called the “Dirty

White Boyz.” He asserts that in October 2013, a “race riot” occurred between members of the

Dirty White Boyz and black inmates. On November 29, 2013, Caldwell was moved to a different

side of the prison by Lieutenant Creasy (first name unknown). Caldwell asserts that this area of

the prison was known to be unfriendly to members of the Dirty White Boys, as black inmates

had threatened to “hurt” any member of the gang living in that area. Caldwell claims he told
Lieutenant Creasy he was a member of the Dirty White Boyz and asked to be taken somewhere

else in light of the danger. The officer allegedly denied this request and left him on the dorm. 

Later that same day, he claims that a group of black inmates “enclosed me around my bed

area,” and demanded that he leave the dorm “or get hurt.” Caldwell reported this to Officer Orr

(first name unknown), telling him he had been threatened and requesting protection. The officer

allegedly brushed off his concerns, telling Caldwell to “leave him alone and to go to sleep.”

Caldwell returned to his bunk and was then beaten by the other inmates. After the attack he was

moved to protective custody, where he remains to date. In this action he seeks compensatory

damages in the amount of $25,000 for injuries he suffered.1

 He sues the two officers referenced

above, as well as Mark Levenhagen, the superintendent of the prison. 

Under the Eighth Amendment, correctional officials have a constitutional duty to protect

inmates “from violence at the hand of other inmates.” Grieveson v. Anderson, 538 F.3d 763, 777

(7th Cir. 2008). Nevertheless, as the U.S. Court of Appeals for the Seventh Circuit has observed:

“[P]risons are dangerous places. Inmates get there by violent acts, and many prisoners have a

propensity to commit more.” Id. Therefore, a failure to protect claim cannot be predicated

“merely on knowledge of general risks of violence in a detention facility.” Brown v. Budz, 398

F.3d 904, 913 (7th Cir. 2005). To state a claim, the plaintiff must “allege facts sufficient to show

that the defendant had actual knowledge of an impending harm easily preventable, so that a

conscious, culpable refusal to prevent the harm can be inferred from the defendant’s failure to

prevent it.” Santiago v. Wells, 599 F.3d 749, 756 (7th Cir. 2010).

1 In an attached grievance Caldwell asserts that he suffered a broken hand and was hit in the head with a

padlock several times, necessitating stitches. (DE 1-1 at 2.)

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Here, taking the plaintiff’s allegations as true, he alleges that Lieutenant Creasy and

Officer Orr were both personally made aware that he was at risk of being hurt by the other

inmates. He further alleges that both officers ignored his concerns and left him in the cell.

Thereafter, he was brutally beaten by the other inmates. Giving the plaintiff the inferences to

which he is entitled at this stage, he has alleged a plausible deliberate indifference claim against

these defendants. 

As to Levenhagen, Caldwell alleges generally that he was aware of the racial tension in

the prison following the race riot. However, knowledge of the general risk of violence in a

correctional facility is insufficient to support a failure to protect claim. Brown, 398 F.3d at 913.

Caldwell does not allege, nor can it be plausibly inferred, that Levenhagen was personally

involved in Caldwell’s move to a different cell, or that Caldwell personally advised Levenhagen

that he was concerned for his safety. Caldwell may be trying to hold Levenhagen liable because

he supervises the other correctional officers involved, but there is no general respondeat

superior liability under Section 1983. Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir.

2001). Levenhagen can only be held liable for his own misconduct, not for an act or omission of

another prison employee. See Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009) (under 42

U.S.C. § 1983 government actors can be held liable only for their “own misdeeds . . . not for

anyone else’s.”). 

Although unclear, Caldwell may be trying to claim that Levenhagen did not do enough to

separate members of the different groups. However, a high-ranking official cannot be held liable

for failure to protect based solely on an allegation that the prison’s classification system was

inadequate. Weiss v. Cooley, 230 F.3d 1027, 1033 (7th Cir. 2000). The relevant standard is

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deliberate indifference and not negligence. Id. Thus, to state a claim, the plaintiff must allege

that the official failed to implement an adequate classification system “with the motive of

allowing or helping prisoners to injure one another.” Id. Caldwell’s general allegations about

Levenhagen fall far short of this standard. Accordingly, he will be dismissed as a defendant.

For these reasons, the court:

(1) GRANTS the plaintiff leave to proceed against Lieutenant Creasy and Officer Orr in

their individual capacities for monetary damages for failing to protect him from an attack by

other inmates in violation of the Eighth Amendment; 

(2) DISMISSES Mark Levenhagen as a defendant;

(3) DISMISSES any and all other claims contained in the complaint;

(4) DIRECTS the U.S. Marshals Service to effect service of process on Lieutenant

Creasy and Officer Orr pursuant to 28 U.S.C. § 1915(d); and

(5) ORDERS Lieutenant Creasy and Officer Orr to respond, as provided for in the

FEDERAL RULES OF CIVIL PROCEDURE, only to the claim on which the pro se plaintiff has been

granted leave to proceed in this screening order.

SO ORDERED on June 5, 2014.

 s/ Joseph S. Van Bokkelen 

Joseph S. Van Bokkelen

United States District Judge

Hammond Division

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