UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

KEVIN MARTIN, )

)

Plaintiff, )

) 

vs. ) No. 3:16 CV 357

)

RON NEAL, et al., )

)

Defendants. )

OPINION AND ORDER

Kevin Martin, a pro se prisoner, filed an amended complaint (DE # 18) naming 

three defendants. He alleges that they did not protect him from an attack by an unknown 

inmate on April 13, 2016. “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) (quotation 

marks and citations omitted). Nevertheless, pursuant to 28 U.S.C. § 1915A, the court must 

review the merits of 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. “In order to state a claim under § 

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). 

Martin states that he believes that Case Worker Sinder told an unknown inmate 

that Martin was talking to internal affairs about trafficking in the prison. He has not 
2

provided any facts to support this speculation. 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 Twombly, 550 U.S. at 

556). “Factual allegations must 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).” 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.’” 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). Such is the case here. Martin speculates that Case Worker Sinder 

knowingly provided information to an unknown inmate with the intent to cause Martin 

harm. However, he has not alleged any facts from which it can be plausibly inferred that 

Case Worker Sinder provided any information to any inmate. As such, this complaint 

does not state a claim against Case Worker Sinder.

Martin is also suing Superintendent Ron Neal. When an inmate is attacked by 

another inmate, the Constitution is violated only if “deliberate indifference by prison 
3

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). Here, Martin has not 

alleged Superintendent Neal knew anything about his being at risk of harm. He is merely 

alleged to be the Superintendent. There is no general respondeat superior liability under 

42 U.S.C. § 1983. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). “[P]ublic employees are 

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

592, 596 (7th Cir. 2009). Therefore the complaint does not state a claim against 

Superintendent Ron Neal. 

The third defendant that Martin is suing is identified only as “Sgt.” It is unclear 

who this is, but Martin alleges that “Sgt. told Kevin Martin he would move him [and] 

claim he will looking into this issue.” DE 18 at 3. However, the complaint does not say 

what Martin told Sgt. or why Sgt. would have known that Martin was in substantial risk 

of serious harm. 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).

Klebanowski testified during his deposition that he told officers 

twice on September 8 that he was afraid for his life and he wanted to be 

transferred off the tier. Those statements, and the officers’ knowledge of the 

first beating, are the only pieces of evidence in the record that can assist 

Klebanowski in his attempt to show that the officers were aware of any risk 

to him. We have previously held that statements like those made by 

Klebanowski are insufficient to alert officers to a specific threat. Butera, 285 

F.3d at 606 (deeming insufficient to establish deliberate indifference 

statements by a prisoner that he was “having problems in the block” and 

“needed to be removed”). In Butera, we deemed the inmate’s statements 
4

insufficient to give notice to the officers because they did not provide the 

identities of those who threatened the inmate, nor state what the threats 

were.

Id. 

The facts of this case make clear our reason for requiring more than 

general allegations of fear or the need to be removed. By Klebanowski’s 

own testimony, the officers knew only that he had been involved in an 

altercation with three other inmates, and that he wanted a transfer because 

he feared for his life. He did not tell them that he had actually been 

threatened with future violence, nor that the attack on September 8 was 

inflicted by gang members because of his non-gang status. Without these 

additional facts to rely on, there was nothing leading the officers to believe 

that Klebanowski himself was not speculating regarding the threat he faced 

out of fear based on the first attack he suffered. This lack of specificity falls 

below the required notice an officer must have for liability to attach for 

deliberate indifference.

Id. at 639–40 (footnote omitted). Additionally, the complaint alleges that an unknown 

inmate set a fire in Martin’s cell, but it says nothing about how big the fire was or whether 

Martin suffered any physical injury as a result of the fire. As presented, this complaint 

does not state a claim against the unknown Sgt.

This is the sixth complaint (DE ## 1, 3, 7, 9, 14, and 18) Martin has filed in this case. 

He has had more than an ample opportunity to present facts supporting a claim if he has 

any. Nevertheless, because he is proceeding pro se and because he has omitted so many 

facts, he will be permitted one last chance to file an amended complaint which states a 

claim. In it he needs to provide facts – not guesses or beliefs. He needs to explain what 

facts exist which plausibly lead to the conclusion that Case Worker Sinder spoke to the 

inmate who attacked him. He needs to list everyone who knew that he was talking to 

prison officials about trafficking. He needs to explain why it was not reasonable to believe 
5

that he would be safe in administrative segregation. He needs to identify Sgt. if he can. If 

not, he needs to describe Sgt. so that it might be possible for someone to identify this 

person because he cannot proceed against an unknown defendant. He needs to be very 

specific about what he told Sgt. and why Sgt. could have concluded that he was in 

substantial risk of serious injury. He needs to describe the fire, how it was started, how 

big it was, what physical injury he suffered, and what medical treatment he received. He 

needs to identify or describe the unknown inmate who started the fire. 

Finally, Martin has filed four motions. First (DE # 19), he asks to file the amended 

complaint. This motion was unnecessary because he had already been granted leave to 

file it. 

In two other motions (DE ## 20 and 22), he argues that he is being retaliated 

against and asks to be moved to the Pendleton Correctional Facility. “A preliminary 

injunction is an extraordinary and drastic remedy; it is never awarded as of right.” Munaf 

v. Geren, 553 U.S. 674, 689-690 (2008) (quotation marks and citations omitted). “[A] 

preliminary injunction . . . should not be granted unless the movant, by a clear showing, 

carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). “A 

plaintiff seeking a preliminary injunction must establish that he is likely to succeed on 

the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, 

that the balance of equities tips in his favor, and that an injunction is in the public 

interest.” Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). Martin alleges that legal mail (it 

appears he means court orders because he makes no reference to receiving mail from an 
6

attorney) are opened outside of his presence. He alleges that his cell has been frequently 

searched and that he has not been able to obtain copies or responses to grievances. He 

alleges that prison officials are not keeping video proof when he gives them papers and 

he fears they will lose his property when he goes to court on December 1, 2016. None of 

these allegations describe irreparable harm and there is no basis for ordering him 

transferred to another prison. 

In his last motion (DE # 21), Martin wants to court to order the Superintendent to 

produce several videotapes which he alleges will prove that he is telling the truth about 

his various interactions with guards. This is unnecessary. The court has accepted his 

current allegations as true. However, they are insufficient to state a claim. Therefore 

Martin does not need these videotapes in order to file an amended complaint. What he 

needs to do is file an amended complaint with additional facts. The form he needs –

Prisoner Complaint (INND Rev. 8/16) – is available in his prison law library. 

For these reasons, the court (1) DENIES the motions (DE # 19, 20, 21, and 22); (2) 

GRANTS Kevin Martin until December 27, 2016, to file an amended complaint; and (3) 

CAUTIONS Kevin Martin that if he does not respond by that deadline, this case will be 

dismissed without further notice pursuant to 28 U.S.C. § 1915A because the current 

complaint does not state a claim on which relief can be granted. 

SO ORDERED.

Date: November 9, 2016

s/ James T. Moody _

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT