UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

LORENZO GILLON, )

)

Plaintiff, )

) CAUSE NO. 3:16-CV-699 RL 

vs. )

)

STEVE RICHMOND, et al., )

)

Defendants. )

OPINION AND ORDER

Lorenzo Gillon, 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 upon which relief

may be granted, or seeks monetary relief against a defendant who is

immune from such relief. Courts apply the same standard under

Section 1915A as when deciding a motion under Federal Rule of Civil

Procedure 12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th

Cir. 2006). To survive a motion to dismiss under Rule 12(b)(6), 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. Furthermore, “[a] document filed

pro se is to be liberally construed, and a pro se complaint,

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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). To state 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). 

Gillon is an inmate at the St. Joseph County Jail and

complains that during med pass on August 4, 2016, he asked the

medical staff for a Tylenol pill. Soon after Gillon received and

ingested the pill, the nurse came back to his cell and told him

that she mistakenly gave him someone else’s medication. Gillon

alleges that he is now concerned that this may happen again and is

reluctant to use the medical facilities at the jail. He brings suit

for money damages against Assistant Warden and Melinda Fisher based

upon “emotional and psychological distress” as well as “mental

anguish.” 

As a threshold matter, Gillon does not identify what either

named defendant did in connection with his claim. This is necessary

as “[a] plaintiff bringing a civil rights action must prove that

the defendant personally participated in or caused the

unconstitutional actions.” Grieveson v. Anderson, 538 F.3d 763, 776

(7th Cir. 2008). “[P]ublic employees are responsible for their own

misdeeds but not for anyone else’s.” Burks v. Raemisch, 555 F.3d

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592, 596 (7th Cir. 2009). There is no general respondeat superior

liability under 42 U.S.C. § 1983. George v. Smith, 507 F.3d 605,

609 (7th Cir. 2007). That is to say, a supervisor is not

responsible in a federal civil rights lawsuit for the actions or

omissions of his employees. Because there is no indication that

either Assistant Warden Richmond or Melinda Fisher was personally

responsible for giving Gillon the wrong medication, he has not

stated a claim against them. 

Nevertheless, even if Gillon had named the individuals

personally responsible for providing him with the wrong medication,

it would still not be plausible to find that Gillon’s

constitutional rights were violated. From the allegations of the

complaint, it is clear that the unidentified nurse mistakenly gave

Gillon the wrong medication. The nurse’s action could be deemed

negligent under state law. However, negligence does not establish

a constitutional claim since “the Eighth Amendment does not codify

common law torts.” Arnett v. Webster, 658 F.3d 742, 751 (7th Cir.

2011) (citation omitted).

Moreover, Gillon alleges that being given the wrong medication

has caused him to suffer emotional distress. He does not allege

that he has directly suffered any physical injury as a result of

these events. Without actual injury caused by the defendants’

actions or omissions, Gillon can not plausibly state a claim in

federal court. See Walker v. Peters, 233 F.3d 494, 502 (7th Cir.

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2000). 

No Federal civil action may be brought by a prisoner

confined in a jail, prison, or other correctional

facility, for mental or emotional injury suffered while

in custody without a prior showing of physical injury.

42 U.S.C. § 1997e(e). 

As explained, this complaint does not state a claim. Though it

does not appear that Gillon could state a claim even if he filed an

amended complaint, he will nevertheless be permitted to do so. See

Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013).

For the reasons set forth above, the Court:

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

Prisoner Complaint 42 U.S.C. § 1983 form and sent it to Lorenzo

Gillon;

(2) GRANTS Lorenzo Gillon to and including January 30, 2017,

to file an amended complaint; and 

(3) CAUTIONS him that if he does not respond by the deadline,

this case will be dismissed pursuant to 28 U.S.C. § 1915A because

the current complaint does not state a claim for which relief can

be granted. 

DATED: January 5, 2017 /s/RUDY LOZANO, Judge 

United States District Court

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