Kuykendall v. Kennell et al

Filing 8

MERIT REVIEW OPINION entered by Judge Joe Billy McDade on 4/24/2015. IT IS ORDERED THAT THE CLERK IS DIRECTED TO: 1) Dismiss Defendants Kennell, Pfister, Angus, Birkel, Boling, Greer, Arroyo, Simpson, Tilden, Ojelaide, Wexford Health Services, and H astings for failure to state a claim upon which relief can be granted pursuant to by 28 U.S.C. §1915A; 2) Attempt service on Defendants pursuant to the standard procedures; 3) Set an internal court deadline 60 days from the entry of this order f or the court to check on the status of service and enter scheduling deadlines; and, Lastly, it is ordered that if a Defendant fails to sign and return a waiver of service for the clerk within 30 days after the waiver is sent, the court will take appr opriate steps to effect formal service through the U.S. Marshals Service on that Defendant and will require that Defendant to pay the full costs of formal service pursuant to Federal Rule of Civil Procedure 4(d)(2). SEE FULL WRITTEN ORDER & OPINION. (Rule 16 Deadline set for 6/23/2015.)(JRK, ilcd)

E-FILED

Friday, 24 April, 2015 02:21:44 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
DOSS KUYKENDALL,
Plaintiff,
v.
ELDON KENNELL, et al.
Defendants.

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14-1477

MERIT REVIEW OPINION
Plaintiff, proceeding pro se and incarcerated at Pontiac Correctional Center, brings the
present lawsuit pursuant to 42 U.S.C. § 1983, alleging Eighth Amendment violations for
excessive force, conditions of confinement, deliberate indifference to a serious medical need, and
First Amendment violations related to his religious practices. The matter comes before this
Court for merit review under 28 U.S.C. §1915A. In reviewing the complaint, the Court takes all
factual allegations as true, liberally construing them in Plaintiff’s favor. Turley v. Rednour, 729
F.3d 645, 649 (7th Cir. 2013).
ALLEGATIONS
June 17, 2013 Incident
During a cell extraction, Plaintiff alleges he was punched and kicked several times, and
he was sprayed with a chemical agent four times in three-second intervals: twice in the face,
once in the genitals and once all over his back. As a result, Plaintiff alleges several dark bruises
developed on his body, and that chemical agent along with the psoriasis on his skin caused an
extreme burning sensation. Plaintiff alleges that his skin glowed bright red-orange from the
amount of chemical agent used.

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Plaintiff alleges several requests for a shower were denied. Instead, he was placed naked
into a cell and told to rinse off with water from the sink. Plaintiff remained in the cell for
approximately two (2) days without basic personal hygiene supplies, including toilet paper. His
requests for those items fell upon deaf ears, as did his request for cleaning supplies upon the
discovery of dried feces within the cell. The smell of feces, Plaintiff alleges, made it difficult for
him to eat. Plaintiff alleges that attempts to clean the chemical agent off his body resulted in
approximately one inch of standing water in the cell. Furthermore, Plaintiff alleges that he was
unable to stop walking because, if he did, the burning sensation on his skin became too intense.
After an extended period of time, Plaintiff alleges he collapsed from exhaustion. No help was
provided.
Plaintiff was moved to a different cell where he was eventually given a jumpsuit, but
denied personal hygiene items. Three days later (and 5 days after the cell extraction), Plaintiff
was allowed to shower, but still required to wear the same jumpsuit containing residue from the
chemical spray. Plaintiff received bedding and personal hygiene items shortly thereafter.
Religion Claims
Plaintiff alleges that Defendant Kennell, the prison chaplain, denied Plaintiff’s requests to
change his religious affiliation, to be provided the exact dates of religious holidays for purposes
of requesting special meals, and for an otherwise kosher diet. Plaintiff alleges that Defendant
Kennell told Plaintiff to skip meals if Plaintiff wanted to fast in observance of those holidays,
and that any food provided on those days would be his regular prison meal. In addition, Plaintiff
alleges that Defendant Kennell made several derogatory remarks regarding Plaintiff’s religious
affiliation.

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Plaintiff’s Medical Condition
Plaintiff alleges that he suffers from severe psoriasis on his skin, and as part of treatment,
he receives prescription medication. During an unspecified time period, Plaintiff alleges that
Defendants Tilden and Ojelaide, both prison doctors, as well as Defendant Arroyo, the healthcare
administrator, denied Plaintiff’s requests to be seen by a dermatologist. Furthermore, Plaintiff
alleges that Defendant Tilden ordered prescription medication for Plaintiff, but that Plaintiff did
not receive it until approximately one month later.
ANALYSIS
Excessive Force Claims
According to Plaintiff, Defendant DeLong ordered a cell extraction after Plaintiff refused
to leave his cell for transfer to administrative detention on June 17, 2013 in the North Cell
House. At the time, Plaintiff alleges he was confused and was suffering from mental health
issues and wanted to be transferred back to the mental health unit. Plaintiff alleges that he was
“gassed” four times, punched, kicked, and sprayed excessively with a chemical agent during the
extraction. Plaintiff alleges that Defendant Forbes and several unknown officials participated in
the extraction. Plaintiff alleges he sustained several dark bruises on his body and experienced a
severe burning sensation from the chemical agents used.
In Eighth Amendment claims for excessive force, the relevant inquiry is “whether force
was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically
for the very purpose of causing harm.” Hudson v. McMillian, 503 U.S. 1, 6 (1992) (citation
omitted); see DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000) (applying Hudson). In making this
determination, the court may examine several factors, “including the need for an application of
force, the relationship between that need and the force applied, the threat reasonably perceived

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by the responsible officers, the efforts made to temper the severity of the force employed, and the
extent of the injury suffered by the prisoner.” Dewalt, 224 F.3d at 619. Significant injury is not
required, but “a claim ordinarily cannot be predicated on a de minimis use of physical force.” Id.
at 620 (citing Hudson, 503 U.S. at 9-10). “Thus, not every push or shove by a prison guard
violates a prisoner’s constitutional rights.” Id.
The use of chemical agents on its own does not violate the Constitution. Soto v. Dickey,
744 F.2d 1260, 1270 (7th Cir. 1984) (“The use of mace, tear gas, or other chemical agent of the
like nature when reasonably necessary to prevent riots or escape or subdue recalcitrant prisoners
does not constitute cruel and unusual punishment.”). Constitutional liability attaches only when
prison officials use chemical agents “in quantities greater than necessary or for the sole purpose
of punishment or the infliction of pain.” Id.
Plaintiff alleges that he was sprayed with so much chemical agent that his skin glowed
bright red-orange. In addition, Plaintiff alleges that prison officials made special trips to his cell
solely to observe the resulting effects from the excessive use of chemical agent on the Plaintiff.
Liberally construed, these allegations could support a finding that prison officials used an
unnecessary amount of chemical agent on Plaintiff during the cell extraction. When combined
with the other allegations, a finding that prison officials used excessive force is certainly
plausible. Therefore, the Court finds that Plaintiff has stated a claim.
The Complaint, however, does not identify the individuals comprising the extraction
team beyond the mention of correctional supervisors DeLong and Forbes. At a minimum,
Defendants DeLong and Forbes should be included because of their alleged direct involvement
in the incident. To the extent that Plaintiff alleges the participation of other unidentified prison
officials, the Court has a duty to assist pro se plaintiffs in identifying these individuals. Donald

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v. Cook Cnty. Sheriff’s Dept., 95 F.3d 548, 555-56 (7th Cir. 1996). For that reason, Defendants
DeLong and Forbes, as correctional supervisors, shall also remain defendants for the purpose of
identifying through discovery the other correctional officers involved and their exact roles in the
cell extraction. Plaintiff makes no allegations against the remaining named defendants related to
the excessive force claim.
Conditions of Confinement
The standard for analyzing an Eighth Amendment conditions of confinement claim in the
prison context is well-established: a prison official is liable for denying a prisoner of his or her
basic human needs, but only if the official is aware of and deliberately indifferent to an
objectively serious risk of harm. Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir.2008). The
court must first determine whether the conditions at issue were “sufficiently serious” such that “a
prison official's act or omission result[ed] in the denial of the minimal civilized measure of life's
necessities.” Farmer v. Brennan, 511 U.S. 832, 834 (1994) (internal quotation marks omitted);
see also Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir.2006). Prison conditions may be
uncomfortable and harsh without violating the Eighth Amendment. See Dixon v. Godinez, 114
F.3d 640, 642 (7th Cir.1997). “The Constitution does not mandate comfortable prisons, but
neither does it permit inhumane ones[.]” Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir.1996)
(citing Farmer, 511 U.S. at 832). Therefore, “extreme deprivations are required to make out a
conditions-of-confinement claim.” Henderson v. Sheahan, 196 F.3d 849, 845 (7th Cir.1999)
(quoting Hudson, 503 U.S. at 9).
Plaintiff’s claims revolve around the denial of basic hygiene and cleaning supplies, water
in his cell, and exposure to human waste during the time he was in segregation. Plaintiff alleges
further that he was denied bedding, a mattress, and clothing for at least the first 27 hours, and the

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denial continued intermittently over the period of approximately five (5) days. Such conditions,
the Seventh Circuit has held, constitute a sufficient deprivation for purposes of a conditions-ofconfinement claim. See Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir. 2007) (denial of
mattress, bedding, hygiene supplies in cell with standing water, non-working sink and toilet, and
smeared blood and feces on walls); Isby v. Clark, 100 F.3d 502, 505 (7th Cir. 1996) (dried blood,
feces, urine, and food on the walls).
Despite these conditions, a prison official cannot be held liable unless “the official knows
of and disregards an excessive risk to inmate health or safety; the official 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, 511 U.S. at 837. Plaintiff alleges that he told every
prison official that came by his cell of the conditions. Specifically, he alleges that Defendants
DeLong, Pierce, Myers, and Punke were personally aware of the conditions in Plaintiff’s cell, but
did not provide any of the items requested. Plaintiff alleges that Defendant DeLong stated he
(DeLong) had “no sympathy” for Plaintiff, Defendant Punke stated to Plaintiff that “what you
get suits you,” and Defendant Pierce and Myers acknowledged the conditions, but failed to take
any steps to remedy the situation. These allegations, if true, could support an Eighth
Amendment conditions-of-confinement claim.
Religious Claims
Prisoners have constitutionally protected rights to the free exercise of their religion while
they are incarcerated. Cruz v Beto, 405 U.S. 319 (1972). However, due to the many exigencies
of running a prison, those rights may sometimes be limited to the extent that they interfere with
or compromise penological interests. O’Lone v Estate of Shabazz, 482 U.S. 342, 350-51 (1987).

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To establish a constitutional violation, the prisoner must first show that the restriction
substantially burdens the exercise of a constitutional right. Nelson v Miller, 570 F.3d 868, 877
(7th Cir. 2009). Such a burden exists when there is “‘substantial pressure on an adherent to
modify his behavior and violate his beliefs.’” Koger v Bryan, 523 F.3d 789, 799 (7th Cir. 2008)
(quoting Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981)). Once
the prisoner makes this showing, the Court must then determine whether the restriction furthers
or is reasonably related to legitimate penological interests. Turner v. Aafley, 482 U.S. 78, 89-91
(1987); see also Reed v Faulkner, 842 F.2d 960, 963 (7th Cir. 1988)(a prisoner is entitled to
practice religion so long as doing so does not “unduly burden” prison administration).
Plaintiff alleges that in March 2013 he requested to change his religious affiliation from
Catholic to Messianic Hebrew, then to Judaism, and lastly to Assemblies of Yahweh. In that
context, he asked to speak to a rabbi, obtain a list of Jewish holidays, be served special religious
holiday meals and a Kosher diet in order to follow the tenets of his religion. According to
Plaintiff, his requests were denied by Defendant Kennell, the prison chaplain. (Doc. 1 at 14, ¶
50).

While prison officials may not put an inmate “to an improper choice between adequate

nutrition and observance of the tenets of his faith,” Hunafa v. Murphy, 907 F.2d 46, 47 (7th Cir.
1990), Plaintiff has not alleged how the denial of his requests including a Kosher diet has done
so. As alleged by Plaintiff, his “designated religious affiliation” was that of the Catholic faith;
and the religious observances including Kosher meals requested by him are not claimed to be
requisites of the Catholic faith, but instead, appear more consistent with the requirements of the
Messianic Hebrew, Judaic, or Assemblies of Yahweh faiths to which Plaintiff wanted to
establish as his designated religious affiliation. Viewed in that light, the claim is construed as a
claim that Defendant Kennell unconstitutionally prevented him from the exercise of his religion

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by refusing to honor his belated designation of a new religious affiliation that legitimized his
various requests. However, Plaintiff has not alleged sufficient facts to make out a plausible
claim that Defendant Kennell violated his 1st Amendment rights by refusing to recognize
Plaintiff’s profession of a new religious affiliation. Therefore, the Court finds that Plaintiff has
failed to state a First Amendment claim.
If Plaintiff seeks to amend this claim, the Court instructs Plaintiff that he must file a
separate lawsuit. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims
against different defendants belong in different suits, not only to prevent [confusion] but also to
ensure that prisoners pay the required filing fees” and comply with the Prisoner Litigation
Reform Act). Plaintiff’s alleged First Amendment claims do not share a common set of facts or
defendants with Plaintiff’s other alleged claims. Furthermore, the First Amendment claims
allegedly arise over a different, though overlapping, time period.
Deliberate Indifference to a Serious Medical Need
Prison officials are liable if they act with deliberate indifference towards a prisoner’s
serious medical need. Estelle v. Gamble, 429 U.S. 97, 105 (1976). A life-threatening medical
condition is not required. Rather, the Seventh Circuit has held that a medical condition is serious
“where the failure to treat a prisoner's condition could result in further significant injury or the
unnecessary and wanton infliction of pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th
Cir.1997) (citation omitted).
Plaintiff alleges he suffers from psoriasis and receives prescription medication to treat the
condition. From this, the Court infers that Plaintiff’s condition is a serious medical need for
purposes of an Eighth Amendment medical claim. Plaintiff, however, has not alleged sufficient
facts for the Court to find that Defendants Tilden, Ojelade, and Arroyo were deliberately

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indifferent. Plaintiff alleges that his prescription medication was not received soon enough, but
alleges that the medication was promptly ordered. Plaintiff has not alleged facts to show that the
Defendants alleged to have caused this delay were actually responsible for doing so.
Furthermore, Plaintiff’s desire to see a specialist or receive specific medication is not sufficient,
on its own, to support an Eighth Amendment medical claim. See Snipes, 95 F.3d 586, 591 (7th
Cir. 1996) (mere disagreement with treatment is not sufficient); Pyles v. Fahim, 771 F.3d 403,
411 (7th Cir. 2014) (medical specialist not required to administer constitutionally adequate
medical care unless need for specialist is known by treating physicians or the need would be
obvious to a lay person). From the allegations, it appears that Plaintiff was receiving ongoing
medical care for his condition. Finally, for the same reasons stated in the previous section, if
Plaintiff seeks to pursue this claim, he must do so in a separate lawsuit.
CONCLUSION
The Court finds that Plaintiff has stated Eighth Amendment claims for excessive force
against Defendants DeLong and Forbes, and conditions-of-confinement against Defendants
DeLong, Pierce, Myers, and Punke. All other claims and defendants shall be dismissed.
IT IS THEREFORE ORDERED:
1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the Court finds
the Plaintiff states an Eighth Amendment claim for excessive force against Defendants
DeLong and Forbes, and for conditions-of-confinement against DeLong, Pierce, Myers,
and Punke. Furthermore, Defendants DeLong and Forbes are available for discovery by
the Plaintiff of the identity of any other yet unidentified defendants involved in the June
2013 incident. Any additional claims shall not be included in the case, except at the
Court’s discretion on motion by a party for good cause shown or pursuant to Federal Rule
of Civil Procedure 15.
2) This case is now in the process of service. Plaintiff is advised to wait until counsel has
appeared for Defendants before seeking discovery or filing any motions, in order to give
Defendants notice and an opportunity to respond to those motions. Motions filed before
Defendants' counsel has filed an appearance will generally be denied as premature.

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Plaintiff need not submit any evidence to the Court at this time, unless otherwise directed
by the Court.
3) The Court will attempt service on Defendants by mailing each Defendant a waiver of
service. Defendants have 60 days from service to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 days of the entry of this order,
Plaintiff may file a motion requesting the status of service. After Defendants have been
served, the Court will enter an order setting discovery and dispositive motion deadlines.
4) With respect to a Defendant who no longer works at the address provided by Plaintiff,
the entity for whom that Defendant worked while at that address shall provide to the
Clerk said Defendant's current work address, or, if not known, said Defendant's
forwarding address. This information shall be used only for effectuating service.
Documentation of forwarding addresses shall be retained only by the Clerk and shall not
be maintained in the public docket nor disclosed by the Clerk.
5) Defendants shall file an answer within 60 days of the date the waiver is sent by the
Clerk. A motion to dismiss is not an answer. The answer should include all defenses
appropriate under the Federal Rules. The answer and subsequent pleadings shall be to
the issues and claims stated in this Order. In general, an answer sets forth Defendants'
positions. The Court does not rule on the merits of those positions unless and until a
motion is filed by Defendants. Therefore, no response to the answer is necessary or will
be considered.
6) Once counsel has appeared for a Defendant, Plaintiff need not send copies of his
filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will file
Plaintiff's document electronically and send a notice of electronic filing to defense
counsel. The notice of electronic filing shall constitute service on Defendants pursuant to
Local Rule 5.3. If electronic service on Defendants is not available, Plaintiff will be
notified and instructed accordingly.
7) Counsel for Defendants is hereby granted leave to depose Plaintiff at his place of
confinement. Counsel for Defendants shall arrange the time for the deposition.
8) Plaintiff shall immediately notify the Court, in writing, of any change in his mailing
address and telephone number. Plaintiff's failure to notify the Court of a change in
mailing address or phone number will result in dismissal of this lawsuit, with prejudice.
9) Within 10 days of receiving from Defendants’ counsel an authorization to release
medical records, Plaintiff is directed to sign and return the authorization to Defendants’
Counsel.

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IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) Dismiss Defendants Kennell, Pfister, Angus, Birkel, Boling, Greer, Arroyo,
Simpson, Tilden, Ojelaide, Wexford Health Services, and Hastings for failure to
state a claim upon which relief can be granted pursuant to by 28 U.S.C. §1915A;
2) Attempt service on Defendants pursuant to the standard procedures;
3) Set an internal court deadline 60 days from the entry of this order for the court to
check on the status of service and enter scheduling deadlines; and,
Lastly, it is ordered that if a Defendant fails to sign and return a waiver of service
for the clerk within 30 days after the waiver is sent, the court will take appropriate
steps to effect formal service through the U.S. Marshal’s Service on that Defendant
and will require that Defendant to pay the full costs of formal service pursuant to
Federal Rule of Civil Procedure 4(d)(2).
ENTERED this 24th day of April, 2015.

_________

s/Joe B. McDade_
_________
JOE BILLY MCDADE
UNITED STATES DISTRICT JUDGE

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