(4) ORDERS Mark Levenhagen, Michael Scott, Tommie Horne, and Edward Bruemmer
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.

S/Philio P Simon
ENTERED: August x 2014.

Philip P. Simon, Chief Judge
United States District Court


2001). Maxie has not alleged, nor can it be plausibly inferred from the complaint, that Lemmon
had any personal involvement in these events. Accordingly, he will be dismissed as a defendant.

Maxie also names the IDOC as a defendant, seeking compensatory and punitive damages.
However, the Eleventh Amendment precludes a suit for damages against a state and its agencies.
Kashani v. Purdue Univ., 813 F.2d 843, 845 (7th Cir. 1987). To the extent Maxie is attempting to
raise a claim for injunctive relief against the IDOC which would not be barred by the Eleventh
Amendment, such a claim cannot proceed, because a state agency is not a “person” that can be
sued for constitutional violations under 42 U.S.C. § 1983.' See Ill. Duneland Preserv. Soc’y v.
Ill. Dep’t of Natural Res., 584 F.3d 719, 721 (7th Cir. 2009). Accordingly, the IDOC will be
dismissed as a defendant.

For these reasons, the court:

(1) GRANTS the plaintiff leave to proceed against Mark Levenhagen, Michael Scott,
Tommie Horne, and Edward Bruemmer in their individual capacities for monetary damages for
housing him under substandard conditions of confinement in violation of the Eighth
Amendment;

(2) DISMISSES the Indiana Department of Correction and Bruce Lemmon as
defendants;

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

1 There is an additional problem with Maxie’s request for injunctive relief; he is no longer housed at Westville,

and indeed, is no longer in the custody of the IDOC. (DE 27.) He does not assert or demonstrate that he is likely to be
reincarcerated in the immediate future, and he therefore cannot seek injunctive relief pertaining to the conditions at
Westville. See Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1995).

4


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION
MICHAEL MAXIE, )
)
Plaintiff, )
) CAUSE NO. 3:13-CV-1280 PS
vs. )
. )
MARK LEVENHAGEN, ef al., )
)
Defendants. )

OPINION AND ORDER

Michael Maxie, a pro se prisoner, filed an amended complaint under 42 U.S.C. § 1983.
(DE 26.) 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). “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.” Jd. at 603. 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).


Maxie, formerly an inmate within the Indiana Department of Correction (“IDOC”),
alleges that between February 2012 and October 2012, when he was housed at the Westville
Correctional Facility (“Westville”), he was subjected to inadequate conditions of confinement.
Specifically, he alleges that he was exposed to excessive amounts of “black mold, mildew, and
asbestos,” which caused him breathing difficulties. He further alleges that for a period of five or
six days in October 2012, he was subjected to excessively cold temperatures as low as 30-40
degrees, during which time he could “see [his] breath” in his cell. He was previously granted
leave to proceed against Superintendent Mark Levenhagen, Assistant Superintendent Michael
Scott, Complex Director Tommie Horne, and Caseworker Edward Bruemmer in connection with
these allegations. (DE 11.) These defendants have appeared and answered the complaint. (DE 17,
18, 24.) Maxie now seeks to add the IDOC and its Commissioner, Bruce Lemmon, as defendants.
(DE 26 at 2.)

In evaluating an Eighth Amendment claim, courts conduct both an objective and a
subjective inquiry. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective prong asks
whether the alleged deprivation is “sufficiently serious” so that “a prison official’s act results in
the denial of the minimal civilized measure of life’s necessities.” Jd. Although “the Constitution
does not mandate comfortable prisons,” Rhodes v. Chapman, 452 U.S. 337, 349 (1981), inmates
are entitled to be provided with adequate food, clothing, shelter, bedding, hygiene materials, and
sanitation. Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009); Gillis v. Litscher, 468 F.3d
488, 493 (7th Cir. 2006). Conditions of confinement may establish a constitutional violation in

combination when each condition alone would not satisfy the standard. Gillis, 468 F.3d at 493.


On the subjective prong, the prisoner must show the defendant acted with deliberate
indifference to his health or safety. Farmer, 511 U.S. at 834. As the U.S. Court of Appeals for
the Seventh Circuit has explained:

[C]onduct is deliberately indifferent when the official has acted in an intentional or

criminally reckless manner, i.e., the defendant must have known that the plaintiff

was at serious risk of being harmed and decided not to do anything to prevent that

harm from occurring even though he could have easily done so.
Board y, Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (internal citations and quotation marks
omitted); see also Reed v. McBride, 178 F.3d 849, 855 (7th Cir. 1999) (where inmate complained
about severe deprivations but was ignored, he established a “prototypical case of deliberate
indifference”).

Here, Maxie alleges that he was subjected to environmental hazards, inadequate
sanitation, and excessively cold temperatures at Westville, which resulted in him needing
breathing treatments, losing weight, and suffering discomfort. With respect to the subjective
prong, the amended complaint—like the original—can be read to allege that Maxie complained
to Levenhagen, Scott, Hornes, and Bruemmer about these conditions, but they ignored him
and/or did nothing to remedy these issues. Giving him the inferences to which he is entitled at
this stage, he has alleged enough to proceed against these defendants.

As to his new claims, he sues Lemmon based on the fact that he is “responsible for all the
prisons” within the state of Indiana. (DE 26 at 7.) However, there is no general respondeat
superior liability under 42 U.S.C. § 1983, and Lemmon cannot be held liable simply because he

oversees operations within the IDOC or supervises the prison staff involved. Burks v. Raemisch,

555 F.3d 592, 596 (7th Cir. 2009); Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir.