Michael Corbitt, Jr. v. Wisconsin Department of Correc ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 26, 2021*
Decided July 27, 2021
Before
MICHAEL S. KANNE, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-1497
MICHAEL L. CORBITT, JR., Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 20-cv-98-pp
WISCONSIN DEPARTMENT OF Pamela Pepper,
CORRECTIONS, et al., Chief Judge.
Defendants-Appellees.
ORDER
Michael Corbitt, Jr., a Wisconsin inmate, alleged in a complaint under 42 U.S.C.
§ 1983 that he was injured when the sliding electric doors at the prison closed on him.
The district court concluded that Corbitt’s allegations sounded in negligence, a state-
law claim, and dismissed his complaint for lack of subject-matter jurisdiction. On
appeal, Corbitt contends that he alleged facts supporting a deliberate-indifference claim
* We have agreed to decide the case without oral argument because the brief and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C). The case was dismissed at
screening before any defendant was served with process, so no appellees are
participating in the appeal.
No. 20-1497 Page 2
under the Eighth Amendment. But because Corbitt’s allegations describe only
negligence, we affirm.
For purposes of this appeal, we accept as true the facts alleged in Corbitt’s
complaint (as clarified in his appellate brief). See Smith v. Dart, 803 F.3d 304, 309, 311
(7th Cir. 2015). Late one afternoon, he was returning to the Milwaukee Secure Detention
Facility from an escorted hospital visit. At the prison’s entrance, one must pass through
an intake sally port equipped with radio-controlled sliding doors. The doors are opened
and closed by prison officers who receive radio transmissions from intake officers.
Under facility policy, the staff must ensure that the entrance is clear before opening or
closing the doors. But that afternoon, Corbitt says, prison officers “were not paying
attention” and the doors shut on him. He sought declaratory relief and damages for his
pain and suffering. As defendants, Corbitt named the Wisconsin Department of
Corrections and unknown officers and sergeants.
The district court screened the complaint, see 28 U.S.C. § 1915A, and dismissed it
for lack of federal jurisdiction. As the court explained, Corbitt’s allegation that the
defendants inattentively closed the doors on him amounted to a claim of negligence,
which—given the lack of diversity jurisdiction among the parties—could be brought
only in state court.
On appeal, Corbitt argues that he adequately asserted a claim under the Eighth
Amendment—deliberate indifference—by alleging that the defendants violated the
prison’s policy of ensuring that the automatic door was clear before closing it on him.
But to state a claim of deliberate indifference, a plaintiff must allege that the defendants
knew or recklessly disregarded a substantial risk of serious harm. See Farmer v. Brennan,
511 U.S. 825, 837 (1994). By alleging that the prison officers closed the door on him
because they “were not paying attention,” Corbett articulated at most a negligence
claim—to which constitutional liability does not attach. See id. at 836; Estate of Her v.
Hoeppner, 939 F.3d 872, 877 (7th Cir. 2019) (internal quotations omitted) (“[N]ot paying
enough attention to a child and thus allowing the child to … drown is terribly tragic
and possibly even negligent.”) And a failure to follow a prison’s policy, by itself, does
not amount to a constitutional violation under § 1983. See Estate of Simpson v. Gorbett,
863 F.3d 740, 746 (7th Cir. 2017).
Corbitt also argues that the district court should have allowed him to amend his
complaint before dismissing it. District courts ordinarily should give a pro se plaintiff at
least one opportunity to amend a complaint. Abu-Shawish v. United States, 898 F.3d 726,
738 (7th Cir. 2018) (collecting cases); Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015).
No. 20-1497 Page 3
But any amendment here would be futile. Corbitt says nothing to back away from his
allegation that the prison officers shut the door on him inattentively. (Indeed, he
proposes only that he wishes to dismiss the Wisconsin Department of Corrections as a
party and add Warden Steven Johnson and other unnamed sergeants and correctional
officers.)
One final note: The district court mistakenly stated that Corbitt would receive a
“strike” for this case under 28 U.S.C. § 1915(g). A strike is incurred only when "an
inmate's case is dismissed in its entirety based on the grounds listed in [28 U.S.C.]
§ 1915(g)." Turley v. Gaetz, 625 F.3d 1005, 1012 (7th Cir. 2010). We understand the district
court here to have dismissed Corbitt’s complaint for lack of federal jurisdiction, which
is not one of the grounds enumerated in § 1915(g) for counting as a strike. See Haury v.
Lemmon, 656 F.3d 521, 523 (7th Cir. 2011).
AFFIRMED