UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

JOE E. SONGER, JR., )

)

Plaintiff, )

) 

v. ) Cause No. 2:15-CV-100-TLS 

)

SGT. A. SULICH, et al., )

)

Defendants. )

OPINION AND ORDER

Joe E. Songer, Jr., a prisoner proceeding pro se, filed a complaint alleging that officers at

the Westville Correctional Facility failed to protect him from being attacked on March 25, 2013,

and that other jail personnel failed to provide him with adequate medical attention following the

attack. “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, pursuant to 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). 

The Plaintiff is currently incarcerated at the Pendleton Correctional Facility. He brings

suit for events that transpired while he was housed at the Westville Correctional Facility. The

Plaintiff alleges that he spoke to Sergeant A. Sulich on March 24, 2013, telling him that a certain

organization had threatened his life and would assault him if he did not leave the general

population. The Plaintiff asked to be separated from general population and be placed in
protective custody. Sergeant Sulich notified his superiors of the Plaintiff’s request. However,

Sergeant Sulich relayed to the Plaintiff that they did not believe he was in imminent danger, and

they required him to stay in general population. The next day, the Plaintiff was attacked by a

member of that organization while he was in the restroom, and suffered a broken jaw. He alleges

that he did not receive adequate treatment for his injuries.

A. Claim Against Sergeant Sulich

First, the Plaintiff brings suit against Sergeant Sulich for failing to protect him from

being assaulted. When an inmate is attacked by another inmate, the Eighth Amendment is

violated only if “deliberate indifference by prison officials effectively condones the attack by

allowing it to happen.” Haley v. Gross, 86 F.3d 630, 640 (7th Cir. 1996). The defendant “must

both be aware of facts from which the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837

(1994). General requests for help and expressions of fear are insufficient to alert guards to the

need for action. Klebanowski v. Sheahan, 540 F.3d 633, 639–40 (7th Cir. 2008). By contrast, “a

complaint that identifies a specific, credible, and imminent risk of serious harm and identifies the

prospective assailant typically will support an inference that the official to whom the complaint

was communicated had actual knowledge of the risk.” Gevas v. McLaughlin, 798 F.3d 475, 481

(7th Cir. 2015). “Even if an official is found to have been aware that the plaintiff was at

substantial risk of serious injury, he is free from liability if he responded to the situation in a

reasonable manner.” Fisher v. Lovejoy, 414 F.3d 659, 664 (7th Cir. 2005).

According to the Plaintiff’s Complaint, Sergeant Sulich notified his superiors of the

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situation. The Plaintiff was informed that they did not believe he was under any imminent threat

and denied his request to be placed in protective custody. The Plaintiff alleges that Sergeant

Sulich was somehow negligent during these events. Negligence alone does not satisfy the

“deliberate indifference” standard. Sellers v. Henman, 41 F.3d 1100, 1102 (7th Cir. 1994). Even

incompetence does not state a claim of deliberate indifference. Walker v. Peters, 233 F.3d 494

(7th Cir. 2000). But the Plaintiff is pro se, so his use of the word “negligent” is not

determinative, and the Court does not expect that the Plaintiff would have known the correct

legal terminology for the requisite mental state. See Perez v. Fenoglio, 792 F.3d 768, 777 (7th

Cir. 2015) (“The deliberate indifference standard reflects a mental state somewhere between the

culpability poles of negligence and purpose, and is thus properly equated with reckless

disregard.”).1

The Plaintiff’s allegations indicate that Sergeant Sulich took some action in response to

the Plaintiff’s concerns, which suggests that he did not ignore the potential risk of which he had

been made aware. However, just because Sergeant Sulich notified his superiors of the situation

does not mean that he did so in a manner that communicated the specific threat identified by the

Plaintiff—that a specific organization had threatened his life and he would be assaulted. The

Court finds that the decision in Perez v. Fenoglio provides a useful analogy. In that case, the

court held that the plaintiff’s concession that he had received immediate and continuing medical

attention from prison staff did not warrant dismissal of his deliberate indifference claim. 792

F.3d at 777 (“If all the Eighth Amendment required was that prison officials provide some

1 In fact, the Plaintiff wrote a letter [ECF No. 8], which was addressed to the Clerk of Court and

filed in this case on September 17, 2015. In that letter, he advised that he wanted to “add deliberate

indifference to my claim. I thought negligence was the proper word to use but upon research have realized

I was partially wrong.”

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‘immediate and ongoing attention,’ they could shield themselves from liability (and save

considerable resources) by shuttling sick or injured inmates to perfunctory medical appointments

wherein no meaningful treatment is dispensed.”). Just as the receipt of some medical care does

not automatically defeat a claim of deliberate indifference, id., making some attempt to inform

supervisors of an inmate’s concern does not automatically defeat such a claim. If it did, officials

could shield themselves from liability by passing along such concerns in perfunctory fashion.

In hindsight, it is clear that Sergeant Sulich’s superiors should have credited the

Plaintiff’s concerns. It remains unclear why they did not, but such questions are not appropriate

at the pleading stage. What, if any, investigation prison officials made into the threat that the

Plaintiff reported, and what they may have subjectively concluded as to the credibility and

gravity of the threats as a result of such investigation, are matters that are within their

knowledge, not the Plaintiff’s. The Plaintiff cannot know for certain what Sergeant Sulich

communicated and what the other officials knew without discovery. At this stage, the Plaintiff

need only allege facts from which their knowledge may be inferred, and he has alleged such

facts, specifically as it relates to Sergeant Sulich. It remains plausible that the response to this

knowledge, which led to forcing the Plaintiff back into the general population, was not

reasonable.

B. Claim Against Superintendent Pazera

The Plaintiff also seeks to hold Andrew Pazera, the Superintendent of Westville, liable

for the decision to not place him in protective custody. 

 “For constitutional violations under § 1983 . . . a government official is only liable for

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his or her own misconduct.” Locke v. Haessig, 788 F.3d 662, 669 (7th Cir. 2015) (quotation

marks omitted); Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009) (holding that under 42

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

anyone else’s”). Accordingly, to state a claim against Pazera, the allegations must plausibly

suggest that he realized that the Plaintiff faced a substantial risk of serious harm, but disregarded

it. 

The Plaintiff does not allege that Pazera was personally involved in the decision to keep

the Plaintiff in general population, or that he was even aware of the Plaintiff’s concerns. The

Plaintiff may be trying to hold Pazera liable because he supervises Sergeant Sulich or others, but

there is no general respondeat superior liability under § 1983. Chavez v. Ill. State Police, 251

F.3d 612, 651 (7th Cir. 2001). Or, he may be attempting to hold Pazera liable in his official

capacity because a policy or custom was the moving force behind the constitutional deprivation.

See Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012).

The failure to provide adequate training to its employees may be a basis for

imposing liability on a municipality . . . , but as with any other policy or practice

for which the plaintiff seeks to hold the municipal . . . defendant liable, the

plaintiff must show that the failure to train reflects a conscious choice among

alternatives that evinces a deliberate indifference to the rights of the individuals

with whom those employees will interact.

Id. “An allegation of a ‘failure to train’ is available only in limited circumstances.” Cornfield v.

Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir.1993). “In order to ensure

that isolated instances of misconduct are not attributable to a generally adequate policy or

training program, we require a high degree of culpability [to avoid] creating de facto respondeat

superior liability ” Id. In other words, a failure to train claim requires that “the policymakers had

acquiesced in a pattern of constitutional violations.” Id. An entity’s “culpability for a deprivation

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of rights is at its most tenuous where a claim turns on a failure to train.” Connick v. Thompson,

563 U.S. 51, 61 (2011). 

The Plaintiff alleges that Pazera did not maintain the staff’s competency in protecting

inmates. He provides no illuminating details regarding this allegation, and certainly none that

would plausibly suggest a pattern of constitutional violations related to the training staff received

regarding how to handle the situation at issue here. Accordingly, the Plaintiff’s Complaint does

not state a claim against Superintendent Pazera for failure to train, and the claim against him will

be dismissed without prejudice. The Plaintiff may replead against Superintendent Pazera in a

more fact-specific manner. Of particular importance, the Plaintiff must give more details

concerning other similar constitutional violations that have occurred at Westville Correctional

Facility such that the Defendant’s deliberate indifference to the consequences of a failed training

program can be plausibly inferred. If the Plaintiff does not amend his complaint, there will be no

claim pending against Superintendent Pazera.

C. Unnamed Officers

Next, the Plaintiff brings suit against two unnamed officers at Westville. Specifically, he

identifies an unnamed lieutenant and an unnamed captain on duty at Westville on March 25,

2013, the day he was attacked. However, neither of these officers appear anywhere in the body

of the Complaint. The pleaded factual content does not permit the Court to draw the reasonable

inference that these Defendants are liable for any constitutional violation. The unnamed

lieutenant and unnamed captain will be dismissed.

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D. Claim Against Urgent Care Nurse

Following the attack, the Plaintiff was taken to the infirmary. There, an unnamed nurse

on duty refused to treat him because he would not open his mouth. The Plaintiff asserts that he

was unable to open his mouth because of his injury, but that the nurse accused him of lying about

having a broken jaw. Consequently, the nurse would not treat the Plaintiff’s injuries or give him

a bed in the infirmary.

Under the Eighth Amendment, inmates are entitled to adequate medical care. Estelle v.

Gamble, 429 U.S. 97, 104 (1976). To establish liability, a prisoner must satisfy both an objective

and subjective component by showing: (1) his medical need was objectively serious; and (2) the

defendant acted with deliberate indifference to that medical need. Farmer, 511 U.S. at 834. A

medical need is “serious” if it is one that a physician has diagnosed as mandating treatment, or

one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s

attention. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). Deliberate indifference means that

the defendant “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) (internal citation omitted). 

For medical professionals to be held liable for deliberate indifference to an inmate’s

medical needs, they must make a decision that represents “such a substantial departure from

accepted professional judgment, practice, or standards, as to demonstrate that the person

responsible actually did not base the decision on such a judgment.” Jackson v. Kotter, 541 F.3d

688, 697 (7th Cir. 2008). A mere disagreement with medical professionals about the best course

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of treatment does not establish deliberate indifference, nor does negligence or even medical

malpractice, since “the Eighth Amendment does not codify common law torts.” Arnett v.

Webster, 658 F.3d 742, 751 (7th Cir. 2011) (quoting Duckworth v. Ahmad, 532 F.3d 675, 679

(7th Cir. 2008)).

Here, giving the Plaintiff the inferences to which he is entitled, he has alleged and

provided medical records of a serious medical need, namely, treatment of a broken jaw. On the

subjective prong, he claims that the nurse he saw at Westville refused to provide him with

necessary treatment or medication. The Plaintiff has alleged enough to proceed past the pleading

stage against the nurse on an Eighth Amendment claim.

However, the Plaintiff apparently does not know the identity of the prison nurse. As a

practical matter this case cannot proceed against an unnamed defendant. See Wudtke v. Davel,

128 F.3d 1057, 1060 (7th Cir. 1997). Therefore, the Court will order that service be made on

Westville’s medical director, Andrew Liaw, for the sole purpose of identifying the nurse through

discovery. See Antonelli v. Sheahan, 81 F.3d 1422, 1428 (7th Cir. 1996). The Court will set

deadlines for the Plaintiff to conduct discovery and to file an amended complaint containing the

name of the nurse, which he must do for this case to proceed. If he can obtain the name of the

nurse on his own without having to conduct discovery, he may do so. In either event, if he fails

to submit an amended complaint containing the name of the nurse by the deadline, this claim will

be dismissed for failure to state a claim against a viable defendant.

E. Claim Against Medical Director

Finally, the Plaintiff brings suit against Andrew Liaw, Westville’s medical director, for

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the unnamed nurse’s actions and for not having “proper procedures in place for his staff to

follow,” which led to him being placed in a room with no bed, chair, or toilet, instead of in the

infirmary. As discussed above, Liaw cannot be personally responsible for the unnamed nurse’s

actions under a theory of respondeat superior. Chavez, 251 F.3d at 651; Burks, 555 F.3d at 596.

Thus, her actions cannot be imputed to him.

The Plaintiff’s reference to procedures suggests that he may be attempting to establish

liability against Liaw in his official capacity. Under that theory, liability only attaches if the

existence of an official policy or other governmental custom was the moving force behind the

deprivation of constitutional rights. Teesdale v. City of Chi., 690 F.3d 829, 833–34 (7th Cir.

2012); City of Canton, Ohio v. Harris, 489 U.S. 378, 388–89 (1989). While the Plaintiff alleges

there were no “proper procedures in place,” his factual allegations point only to the actions of

one nurse on a single occasion. See Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005)

(holding that where a plaintiff alleges that a lack of a policy caused a constitutional violation,

liability requires “more than a single incident”). Absent allegations about a “series of incidents

or a widespread practice against other inmates,” the Complaint allegations do not state a

plausibly claim that the failure to house the Plaintiff in the infirmary was the result of deliberate

indifference by the government entity. Glisson v. Ind. Dep’t of Corr., No. 15-1419, 2016 WL

625944, at *4 (7th Cir. Feb. 17, 2016). The Plaintiff’s claim against Liaw will be dismissed.

CONCLUSION

For these reasons, the Court:

(1) GRANTS the Plaintiff leave to proceed against Sergeant A. Sulich in his individual

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capacity for monetary damages under the Eighth Amendment for failing to protect him from an

attack by another inmate;

(2) GRANTS the Plaintiff leave to proceed against Andrew Liaw, medical director at

Westville Correctional Facility, for the sole purpose of conducting discovery to identify the

nurse who allegedly denied him proper medical care for a broken jaw at Westville on March 25,

2013;

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

(4) DISMISSES Superintendent Andrew Pazera from this case;

(5) DIRECTS the U.S. Marshals Service to effect service of process on Sergeant A.

Sulich and Andrew Liaw;

(6) ORDERS Andrew Liaw to appear and respond to limited discovery directed to

identifying the unnamed prison nurse who treated the plaintiff at Westville Correctional Facility; 

(7) WAIVES any obligation by Andrew Liaw to answer the complaint; 

(8) DIRECTS the Clerk to place this cause number on a blank 42 U.S.C. § 1983 Prisoner

Complaint form and mail it to the Plaintiff along with a copy of this Order; 

(9) ORDERS that discovery by the Plaintiff to determine the identity of the unnamed

prison nurse be initiated by May 30, 2016;

(10) ORDERS the plaintiff to file an amended complaint on or before September 30,

2016, which names the prison nurse; and 

(11) CAUTIONS him that if he does not file an amended complaint or otherwise respond

by the deadline, the claim against the unnamed nurse will be dismissed and this case will

proceed on this screening Order of the Complaint. 

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SO ORDERED on April 12, 2016.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION

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