UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DON L. THOMAS, )

)

Plaintiff, )

) CAUSE NO. 3:14-CV-1629 PS 

vs. )

)

MONTE FISHER, et al., )

)

Defendants. )

OPINION AND ORDER

Don L. Thomas, a pro se prisoner, filed an amended complaint under 42 U.S.C. §

1983. (DE 7.) Pursuant to 28 U.S.C. § 1915A, I must review the complaint and dismiss it

if the action is frivolous or malicious, fails to state a claim upon which relief may be

granted, or seeks monetary relief against a defendant who is immune from such relief.

To survive dismissal, the 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)(citing and

quoting Twombly and Iqbal). “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 602. Thus, the plaintiff “must do better than

putting a few words on paper that, in the hands of an imaginative reader, might suggest

that something has happened to her that might be redressed by the law.” Swanson v.

Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010). Nevertheless, I must bear in mind that

“[a] document filed pro se is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). 

Here, Thomas alleges that in October 2013, he was arrested on charges of theft in

Wells County. He claims he was kept at the jail for five days before being brought

before a judicial officer for a probable cause hearing. The complaint can be read to

allege that two Bluffton police officers, Detective Kyle Randall and Officer Adrian

Bermudez, purposely kept him at the jail for this extended period so they could have

time to gather additional evidence against him.

 The Fourth Amendment provides a right to a prompt judicial determination of

probable cause. County of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991); Gerstein v.

Pugh, 420 U.S. 103, 125-26 (1975). Judicial determinations of probable cause within 48

hours of arrest are generally considered reasonable, unless the plaintiff can prove

unreasonable delay. McLaughlin, 500 U.S. at 56. If a probable cause hearing is not held

within 48 hours, the government must demonstrate the existence of an emergency or

other extraordinary circumstance to justify its failure to promptly present the person

arrested to a judicial officer for a probable cause determination. Id. at 56-57; Lopez v. City

of Chicago, 464 F.3d 711, 722 (7th Cir. 2006). Delays for the purpose of gathering

additional evidence to justify the arrest do not satisfy this standard. McLaughlin, 500

U.S. at 56. A person who is held in violation of these principles can recover

compensatory and/or punitive damages for the unlawful duration of his confinement,

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or at a minimum, can recover nominal damages. Lopez, 464 F.3d at 722; Kyle v. Patterson,

196 F.3d 695, 697-98 (7th Cir. 1999).

Although the complaint is not heavy on detail, it can be read to allege that

Thomas was arrested without a warrant and detained for five days without being taken

before a judicial officer. It can also be read to allege that the two officers purposely

detained him for this extended period without a legitimate reason. Giving Thomas the

inferences to which he is entitled at this stage, he has alleged enough to proceed against

the two officers. 

Thomas also names Wells County Sheriff Monte Fisher as a defendant, without

providing any details about how, if at all, he was personally involved in these events.

This is Thomas’s second attempt to plead his claims, and he was previously instructed

that he must explain in detail what each named defendant did to violate his rights in

order to state a plausible claim for relief. It appears he may be trying to hold the sheriff

liable as the official who oversees operations at the jail. However, there is no general

respondeat superior liability under Section 1983. Chavez v. Ill. State Police, 251 F.3d 612, 651

(7th Cir. 2001). The sheriff can only be held liable for his own misconduct, not for an act

or omission of his subordinate or anyone else. 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.”). As a policy maker, the sheriff could be

held liable for an unconstitutional official policy or custom that caused Thomas’s injury.

See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). However,

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Thomas does not identify an official policy or practice in his complaint, nor is there a

plausible basis to infer that the Sheriff’s Department had an official policy or practice to

violate the Gerstein rights of its arrestees. Instead, Thomas describes a scenario where

two rogue officers detained him beyond the 48-period to suit their own purposes.

Accordingly, the sheriff will be dismissed as a defendant.

For these reasons, the court:

(1) GRANTS the plaintiff leave to proceed against Kyle Randall and Adrian

Bermudez in their individual capacities for monetary damages for violating his Fourth

Amendment rights;

(2) DISMISSES Monte Fisher as a defendant;

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

(4) DIRECTS the United States Marshals Service to effect service of process on

Kyle Randall and Adrian Bermudez pursuant to 28 U.S.C. § 1915(d); and

(5) ORDERS Kyle Randall and Adrian Bermudez to respond, as provided for in

the FEDERAL RULES OF CIVIL PROCEDURE, only to the claim for which the plaintiff has

been granted leave to proceed in this screening order.

SO ORDERED.

ENTERED: July 31, 2014. /s Philip P. Simon 

Philip P. Simon, Chief Judge

United States District Court

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