MAHONE v. COX et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KEVIN PHILLIP MAHONE, SR., 	)
)
Plaintiff, 	)
)
v. 	) 	No. 1:26-cv-01255-JPH-KMB
)
HALEY COX PN, 	)
KRISTIN PARTAIN MD, 	)
CENTURION HEALTH OF INDIANA, 	)
MARIO MARUSO Nurse, 	)
STRONG, 	)
LISA HAMBLE, 	)
A. COLE Warden, 	)
C. FOX Deputy Warden, 	)
BIRCH Nurse, 	)
)
Defendants. 	)
ORDER SCREENING COMPLAINT AND DIRECTING FURTHER
PROCEEDINGS
Plaintiff 	Kevin 	Mahone, 	Sr., 	is 	a 	prisoner 	currently 	incarcerated 	at
Pendleton Correctional Facility. He filed this civil action alleging the presence of
Legionella in the Pendleton water supply. Because the plaintiff is a "prisoner,"
this Court must screen the complaint before service on the defendants. 28 U.S.C.
§ 1915A(a), (c).
I. Screening Standard
When screening a complaint, the Court must dismiss any portion that is
frivolous or malicious, fails to state a claim for relief, or seeks monetary relief
against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). To
determine whether the complaint states a claim, the Court applies the same
standard as when addressing a motion to dismiss under Federal Rule of Civil
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Procedure 12(b)(6). See Schillinger v. Kiley, 954 F.3d 990, 993 (7th Cir. 2020).
Under that standard, a complaint must include "enough facts to state a claim to
relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
Court construes pro se complaints liberally and holds them to a "less stringent
standard than pleadings drafted by lawyers." Cesal v. Moats, 851 F.3d 714, 720
(7th Cir. 2017).
II. The Complaint
The Court accepts Mr. Mahone's factual allegations as true at the pleading
stage but not his legal conclusions. See Iqbal, 556 U.S. at 678 ("we must take all
of the factual allegations in the complaint as true," but "we 'are not bound to
accept as true a legal conclusion couched as a factual allegation'") (quoting
Twombly, 550 U.S. at 555)). The complaint names as defendants (1) PN (Nurse)
Cox; (2) Dr. Kristin Partain; (3) Centurion Health of Indiana; (4) Nurse Mario
Maruso; (5) (unknown) Strong; (6) Lisa Hamble; (7) Warden A. Cole; (8) Deputy
Warden C. Fox; and (9) Nurse Birch.
Mr. Mahone alleges that Warden Cole and Deputy Warden Fox have been
aware 	of 	but 	failed to 	remediate 	Legionella 	contamination 	in 	the 	water 	at
Pendleton 	since 	at 	least 	December 	2021, 	when 	an 	inmate 	died 	from 	it.
Specifically, quality control has been abandoned, water is not inspected, and
shower filters have not been updated as needed.
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On January 23, 2026, Mr. Mahone asked to be tested for Legionella after
he began experiencing symptoms of headaches, abdominal pains, difficulty
breathing, and coughing up phlegm. On January 27, Nurse Maruso gave Mr.
Mahone a sample cup and bag to place it in. Later that night Mr. Mahone
attempted to give a sample to Nurse Birch, who refused to take it because she
did not have gloves and said she would return later, but she never did. Mr.
Mahone gave the sample to non-defendant Nurse Mason the next morning. On
January 29, Nurse Cox told Mr. Mahone that his sample had been destroyed on
Dr. Partain's orders. Specifically, Nurse Cox related that his temperature had not
been high enough (over 100) to warrant testing and that it was too expensive to
test everyone who was having symptoms like Mr. Mahone's. Nurse Cox gave Mr.
Mahone another sample collection cup and a medication for diarrhea.
On March 21, 2026, Mr. Mahone saw Dr. Partain. She told Mr. Mahone
that "everyone in the facility has possible traces of 'legionella' and there's only
one person who died in '2021' so don't be worried." Dkt. 1 at 3. Mr. Mahone told
Dr. Partain that he was still experiencing symptoms, and she falsely accused
him of missing an appointment the previous month. Mr. Mahone also alleges
that "Centurion Healthcare LLC and Supervisors Lisa Hamble, MD Partain,
(unknown) Strong . . . deny treatment unless symptoms are catastrophic . . . ."
Id. at 9. Mr. Mahone also alleges that either Dr. Partain or Nurse Cox (it is not
entirely clear from the wording of the complaint) told him "that the decision to
watch inmates slowly die is above her pay grade . . . ." Id.
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III. Discussion of Claims
Although a plaintiff need not plead legal theories in a complaint, see Fed.
R. Civ. P. 8(a), Mr. Mahone has identified the theories he wishes to use—claims
under the Eighth Amendment and Safe Drinking Water Act ("SDWA") and a state
law claim for intentional infliction of emotional distress. Where a pro se litigant
has expressly stated the legal theories he wishes to pursue, the district court is
not required to analyze whether the allegations in the complaint might state a
claim under a different legal theory. See Larry v. Goldsmith, 799 F. App'x 413,
416 (7th Cir. 2016) (citing Clancy v. Office of Foreign Assets Control of U.S. Dep't
of Treasury, 559 F.3d 595, 606-07 (7th Cir. 2009)). Thus, the court analyzes Mr.
Mahone's claims only under the theories he has identified.
Applying 	the 	screening 	standard 	to 	the 	factual 	allegations 	in 	the
complaint, certain claims are dismissed while other claims shall proceed as
submitted.
First, to state an Eighth Amendment claim against Nurses Maruso and
Birch, Mr. Mahone must show that (1) he suffered an objectively serious medical
condition; 	(2) 	the 	defendant 	in 	question 	knew 	of 	the 	condition 	and 	was
deliberately indifferent to treating him; and (3) this deliberate indifference injured
him. Stockton v. Milwaukee Cnty., 44 F.4th 605, 614 (7th Cir. 2022). The sole
interactions with Nurses Maruso and Birch that Mr. Mahone describes in his
complaint are that Nurse Maruso gave him the materials to provide a testing
sample, 	and 	Nurse 	Birch 	declined 	to 	take 	the 	sample 	when 	Mr. 	Mahone
attempted to give it to her. He did give it to a different nurse shortly thereafter,
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and in any event, Dr. Partain later ordered that the sample be destroyed without
being tested. These allegations fail to indicate how Mr. Mahone was injured by
the actions or inactions of Nurses Maruso and Birch. Any Eighth Amendment
claims against Nurses Maruso and Birch are dismissed.
Second, the state law tort of intentional infliction of emotional distress is
when "one who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another . . . ." Cullison v. Medley, 570 N.E.2d
27, 31 (Ind. 1991) (citation omitted). "It is the intent to harm one emotionally
that constitutes the basis for the tort of an intentional infliction of emotional
distress." 	Id. 	Mr. 	Mahone 	has 	not 	sufficiently 	alleged 	that 	any 	defendant
specifically intended to cause him emotional distress by his actions. See id.
(holding plaintiff's allegation that defendant knew he dislike guns and that
defendant intentionally wore a gun in plaintiff's presence was insufficient to state
claim 	of 	intentional 	infliction 	of 	emotional 	distress). 	Any 	such 	claims 	are
dismissed.
As for the SDWA, it was passed to establish uniform standards for public
water systems and to reduce contamination in drinking water. 67 Am. Jur. Proof
of Facts 3d 95 (Vinal, R. 2002) (citing 42 U.S.C. §§ 300f et seq.). The SDWA gives
private persons authority to bring an enforcement action for injunctive relief,
Hootstein v. Amherst-Pelham Reg'l Sch. Comm., 361 F. Supp. 3d 94, 105 (D. Mass
2019), but "there is no private right of action for damages arising from a violation
of the SDWA." Mays v. City of Flint, Mich., 871 F.3d 437, 450 (6th Cir. 2017)
(citation omitted); see also Phan v. Aurora City Water Util. Admin., No. 21-CV-
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00960-GPG, 2021 WL 5629068, at *1 (D. Colo. Apr. 13, 2021). Based on this,
Mr. Mahone's SDWA claim shall proceed only against Warden Cole in his official
capacity and only to the extent Mr. Mahone seeks injunctive relief. Any claims
for damages against any Defendant under the SDWA are dismissed.
Additionally, 	Eighth 	Amendment 	deliberate 	indifference 	claims 	for
damages shall 	proceed against Nurse Cox, Dr. Partain, Lisa Hamble, and
Strong, and Eighth Amendment conditions of confinement claims shall proceed
against Warden Cole and Deputy Warden Fox. Additionally, a claim against
Centurion shall proceed under the theory recognized in Monell v. Dep't of Soc.
Servs., 436 U.S. 658 (1978) based on the implication that it has a policy or
procedure 	of 	unreasonably 	restricting 	or 	denying 	testing 	for 	Legionella 	at
Pendleton.
This summary of claims includes all of the viable claims identified by the
Court. 	All 	other 	claims 	have 	been 	dismissed. 	If 	the 	plaintiff 	believes 	that
additional claims were alleged in the complaint, but not identified by the Court,
he shall have through November 6, 2026, in which to file a motion to reconsider
the screening order.
IV. Conclusion and Service of Process
The clerk is directed to terminate Mario Maruso and Birch as defendants
on the docket.
The clerk is directed pursuant to Fed. R. Civ. P. 4(c)(3) to issue process
to defendants in the manner specified by Rule 4(d). Process shall consist of the
complaint filed on June 10, 2026, dkt. [1], applicable forms (Notice of Lawsuit
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and 	Request 	for 	Waiver 	of 	Service 	of 	Summons 	and 	Waiver 	of 	Service 	of
Summons), and this Order.
Defendants Haley Cox, Dr. Kristin Partain, Strong, and Lisa Hamble are
identified as employees of Centurion. A copy of this Order and the process
documents 	shall 	also 	be 	served 	on 	Centurion 	electronically. 	Centurion 	is
ORDERED to provide the full name and last known home address of any
defendant who does not waive service if they have such information. This
information shall be filed ex parte.
The clerk is directed to serve the Indiana Department of Correction and
Centurion and its employees electronically.
Nothing in this Order prohibits the filing of a proper motion pursuant to
Rule 12 of the Federal Rules of Civil Procedure.
SO ORDERED.
Date: 10/9/2026
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Distribution:
Electronic service to Indiana Department of Correction:
Warden A. Cole
Deputy Warden C. Fox
(All at Pendleton Correctional Facility)
Electronic service to Centurion and employees
Dr. Kristin Partain
Nurse Haley Cox
Strong
Lisa Hamble
KEVIN PHILLIP MAHONE, SR.
170501
PENDLETON - CF
PENDLETON CORRECTIONAL FACILITY
Electronic Service Participant – Court Only
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