UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

MICHAEL ANTHONY MAXIE, )

)

Plaintiff, )

) CAUSE NO. 3:13-CV-1278 RM

v. )

)

JOHN DOE, and MARK E. LEVENHAGEN, )

)

Defendants. )

OPINION AND ORDER

Michael Anthony Maxie, a pro se prisoner, filed a complaint pursuant to 28 U.S.C.

§ 1983. “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). Nevertheless, under 28

U.S.C. § 1915A, this court must review the 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. “In order to state a claim under [42 U.S.C.] § 1983 a plaintiff must

allege: (1) that defendants deprived him of a federal constitutional right; and (2) that the

defendants acted under color of state law.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir.

2006). A complaint must contain sufficient factual matter to “state a claim that is plausible

on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial

plausibility when the pleaded factual content allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citing Bell Atlantic v. Twombly, 550 U.S. at 556). “Factual allegations must

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be enough to raise a right to relief above the speculative level, on the assumption that all

the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic v.

Twombly, 550 U.S. at 555 (quotation marks, citations and footnote omitted). “[W]here the

well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled

to relief.’” Ashcroft v. Iqbal, 556 U.S. at 679 (quotation marks and brackets omitted). Thus,

“a 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)

(emphasis in original). 

Mr. Maxie alleges that on January 15, 2013, an unknown correctional officer put

shackles on his ankles that were too small. He alleges that when he told the officer that they

were too small, the guard said that he didn’t have a larger pair. Mr. Maxie doesn’t allege

that he said anything else to that guard about the shackles, but says the shackles caused

him pain when he walked. Mr. Maxie also alleges that he now has dark rings around his

ankles and ongoing pain, especially at night when he is laying down.

A violation of the Eighth Amendment’s cruel and unusual punishments clause

consists of two elements: (1) objectively, whether the injury is sufficiently serious to deprive

the prisoner of the minimal civilized measure of life’s necessities, and (2) subjectively,

whether the prison official’s actual state of mind was one of “deliberate indifference” to the

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deprivation. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Mr. Maxie’s allegations statisfy

the first prong of that test, but not the second one. 

Deliberate indifference is “something approaching a total unconcern for [the

plaintiff’s] welfare in the face of serious risks, or a conscious, culpable refusal to prevent

harm.” Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992). This total disregard for a prisoner’s

safety is the “functional equivalent of wanting harm to come to the prisoner.” McGill v.

Duckworth, 944 F.2d 344, 347 (7th Cir. 1991). 

[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 v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (quotation marks, brackets, and citation

omitted). 

Negligence on the part of an official does not violate the Constitution,

and it is not enough that he or she should have known of a risk. Instead,

deliberate indifference requires evidence that an official actually knew of a

substantial risk of serious harm and consciously disregarded it nonetheless.

Pierson v. Hartley, 391 F.3d 898, 902 (7th Cir. 2004) (citations omitted). It isn’t enough to

show that a defendant merely failed to act reasonably. Gibbs v. Franklin, 49 F.3d 1206, 1208

(7th Cir. 1995). Even incompetence doesn’t state a claim of deliberate indifference. Walker

v. Peters, 233 F.3d 494 (7th Cir. 2000). 

The only allegation about what the guard knew about the shackles was that Mr.

Maxie told him once that they were too small. Based on this lone allegation, it isn’t

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reasonable to infer that the guard had actual knowledge that Mr. Maxie was in substantial

risk of serious harm. Mr. Maxie hasn’t stated a claim based upon the shackles. 

Mr. Maxie alleges that the guard placed him in the back of a security van without

seatbelts. He alleges that this was unsafe. However, “not every deviation from ideally safe

conditions constitutes a violation of the constitution. The eighth amendment does not

constitutionalize the Indiana Fire Code. Nor does it require complete compliance with the

numerous OSHA regulations.” French v. Owens, 777 F.2d 1250, 1257 (7th Cir. 1985)

(quotation marks and citations omitted.) The Eighth Amendment requires that prison

officials ensure that inmates receive adequate food, clothing, and shelter, Farmer v.

Brennan, 511 U.S. 825, 832 (1994), but conditions that merely cause inconveniences and

discomfort or make confinement unpleasant do not rise to the level of Constitutional

violations. Adams v. Pate, 445 F.2d 105, 108-109 (7th Cir. 1971). 

Conditions of confinement must be severe to support an Eighth Amendment

claim; “the prison officials’ act or omission must result in the denial of ‘the

minimal civilized measure of life’s necessities.’” Farmer [v. Brennan, 511 U.S.

825, 834 (1994)] (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). See

also, Lunsford v. Bennett, 17 F.3d 1574, 1579 (7th Cir. 1994) (the Eighth

Amendment only protects prisoners from conditions that “exceed

contemporary bounds of decency of a mature, civilized society.”); Jackson [v.

Duckworth,] 955 F.2d [21,] 22 [(7th Cir. 1992)].

Morissette v. Peters, 45 F.3d 1119, 1123 (7th Cir. 1995) (parallel citations omitted). “An

objectively sufficiently serious risk, is one that society considers so grave that to expose any

unwilling individual to it would offend contemporary standards of decency.” Christopher

v. Buss, 384 F.3d 879, 882 (7th Cir. 2004) (quotation marks and citations omitted). Riding

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in a van without seatbelts isn’t such a risk. Moreover, Mr. Maxie doesn’t allege that he

suffered any injury as a result of the van ride, and fear of potential harm that doesn’t

happen isn’t actionable under § 1983. Doe v. Welborn, 110 F.3d 520, 523-24 (7th Cir. 1997).

See also Walker v. Peters, 233 F.3d 494, 502 (7th Cir. 2000) (Actual injury caused by the

defendant is required to establish liability). Mr. Maxie hasn’t stated a claim based on the

van ride. 

Mr. Maxie seeks injunctive relief compelling that he be taken to a medical expert to

examine the dark rings on his ankles. He says he has seen a nurse and that he has received

medication for his ankle pain. Prisoners are “not entitled to demand specific care [nor]

entitled to the best care possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir.1997). Though

his desire to see an expert is understandable, his request is meritless as a matter of federal

constitutional law.

Finally, Mr. Maxie alleges that the Superintendent Mark Levenhagen is responsible

because he is in charge of the prison. First, Mr. Maxie hasn’t stated a claim, so even if

Superintendent Levenhagen could be held liable for the actions of others in this case, there

would be no basis for doing so based on the facts alleged here. Even if Mr. Maxie had

stated a claim against someone else, he couldn’t sue Superintendent Levenhagen because

there is no general respondeat superior liability under 42 U.S.C. § 1983. “Only persons who

cause or participate in the violations are responsible.” George v. Smith, 507 F.3d 605, 609

(7th Cir. 2007). Mr. Maxie hasn’t stated a claim against Superintendent Levenhagen.

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As explained, this complaint doesn’t state a claim. Though it doesn’t appear that

Maxie could state a claim even if he filed an amended complaint, the court will give him

a chance to do so. See Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013).

For the forgoing reasons, the court:

(1) DIRECTS the clerk to place this cause number on a blank Prisoner

Complaint 42 U.S.C. § 1983 form and send it to Michael Anthony Maxie; and

(2) GRANTS Michael Anthony Maxie until February 20, 2014, to submit an

amended complaint.

If Mr. Maxie doesn’t respond by that deadline, this case will be dismissed without

further notice because the complaint doesn’t state a claim upon which relief can be granted. 

SO ORDERED.

ENTERED: January 30 , 2014 

 /s/ Robert L. Miller, Jr. 

Judge, 

United States District Court

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