Oliver v. Perez et al

Filing 9

MERIT REVIEW OPINION (See Written Opinion): Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states the following claim: Eighth Amendment claim for failure to protect from harm against Defenda nts Perez, Morrow, Goad, Carothers, Sheppard, Millard, and Barclay, and an Eighth Amendment claim for excessive force against Defendants Morrow and Goad. 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. Defendants Wood, Buckley, Ramage, and Akpore shall be dismissed. Plaintiff's Motion 3 is DENIED with leave to renew. Plaintiff's Motion for Status 7 is DENIED as moot. Entered by Judge Sue E. Myerscough on 6/02/2015. (VM, ilcd)

E-FILED

Tuesday, 02 June, 2015 12:34:04 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
HAROLD OLIVER,

)
)
Plaintiff,
)
)
v.
)
)
TIMOTHY PEREZ, et al.
)
)
Defendants. )

15-1084

MERIT REVIEW OPINION
Plaintiff, proceeding pro se and presently incarcerated at Hill
Correctional Center, brings the present lawsuit pursuant to 42
U.S.C. § 1983 alleging an Eighth Amendment failure to protect
claim. Plaintiff’s Petition to Proceed In Forma Pauperis (Doc. 2) was
denied as Plaintiff has accrued three strikes under 28 U.S.C. §
1915(g). Plaintiff did not allege an imminent danger of serious
physical injury and, therefore, was ordered to pay the filing fee in
full within 28 days. Plaintiff has complied with the Court’s order,
and the matter now 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).
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However, conclusory statements and labels are insufficient.
Enough facts must be provided to “state a claim for relief that is
plausible on its face.” Alexander v. U.S., 721 F.3d 418, 422 (7th Cir.
2013) (internal citation omitted).
FACTS
Plaintiff alleges that he was attacked by his cellmate in July
2014. Plaintiff alleges that his cellmate, an inmate with a known
propensity for violence against other inmates, hit Plaintiff in the
head several times with a “fan.” During the attack, Plaintiff alleges
that Defendants Perez, Morrow, Goad, Carothers, Sheppard,
Millard, and Barclay stood outside Plaintiff’s cell. Rather than stop
the attack, Plaintiff alleges that these defendants did nothing but
laugh and keep the door to Plaintiff’s cell locked while the attack
ensued. When Plaintiff pleaded with the correctional officers to
open the door, Plaintiff alleges that Defendant Morrow sprayed
Plaintiff in the face with a chemical agent. The alleged assault
continued, and upon another attempt to plead with the officers to
open his door, Plaintiff alleges he was once again sprayed in the
face with chemical agent, this time by Defendant Goad. Plaintiff

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alleges he suffered serious physical injury as a result of the alleged
attack.
ANALYSIS
Failure to Protect
To succeed on a failure to protect claim, a plaintiff must show
(1) “that he is incarcerated under conditions posing a substantial
risk of serious harm,” and, (2) prison officials acted with “deliberate
indifference” to that risk. Farmer v. Brennan, 511 U.S. 825, 834
(1994). For purposes of satisfying the first prong, “it does not
matter whether the risk comes from a single source or multiple
sources, any more than it matters whether a prisoner faces an
excessive risk of attack for reasons personal to him or because all
prisoners in his situation face such a risk.” Id. at 843. A prison
official acts with deliberate indifference if he “knows of and
disregards an excessive risk to inmate health or safety; the official
must both be aware of the facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Id. A plaintiff “normally proves actual
knowledge of impending harm by showing that he complained to
prison officials about a specific threat to his safety.” Pope v. Shafer,
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86 F.3d 90, 92 (7th Cir. 1996) (quoting McGill v. Duckworth, 944
F.3d 344, 349 (7th Cir. 1991)). Liability attaches where “deliberate
indifference by prison officials effectively condones the attack by
allowing it to happen….” Haley v. Gross, 86 F.3d 630, 640 (7th Cir.
1996).
Plaintiff alleges that he was assigned to share a cell with an
inmate with a known propensity for violence against other inmates.
When the risk of harm materialized, Plaintiff alleges that the
correctional officers refused to intervene and subjected Plaintiff to
further harm. Therefore, the Court finds that Plaintiff has stated a
claim for failure to protect against Defendants Perez, Morrow, Goad,
Carothers, Sheppard, Millard, and Barclay.
Excessive Force
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
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application of force, the relationship between that need and the
force applied, the threat reasonably perceived 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 in the face with a
chemical agent on two separate occasions, each time while pleading
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with correctional officers to stop the alleged attack. From these
facts, the Court cannot rule out a constitutional claim against
Defendants Morrow and Goad for excessive force.
Remaining Defendants
Plaintiff does not mention Defendants Wood, Buckley, or
Ramage in the body of his Complaint. Plaintiff has not alleged any
specific allegations against these defendants or any facts from
which the Court can infer potential constitutional liability.
Therefore, these defendants should be dismissed.
Likewise, even assuming Plaintiff’s allegations that Defendant
Akpore did not respond to Plaintiff’s written inquiries are true, this
does not state a claim for relief under § 1983. “Section 1983
creates a cause of action based on personal liability and predicated
upon fault; thus, liability does not attach unless the individual
defendant caused or participated in a constitutional deprivation.”
Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996) (citations omitted).
A plaintiff must plead that each official, “though the official’s own
individual actions, has violated the Constitution.” Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009). Plaintiff has not alleged that Defendant

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Akpore personally participated in the events alleged above.
Defendant Akpore should also be dismissed.
IT IS THEREFORE ORDERED:
1)

Pursuant to its merit review of the Complaint under

28 U.S.C. § 1915A, the Court finds that Plaintiff states the
following claim: Eighth Amendment claim for failure to protect
from harm against Defendants Perez, Morrow, Goad, Carothers,
Sheppard, Millard, and Barclay, and an Eighth Amendment
claim for excessive force against Defendants Morrow and Goad.
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.
Defendants Wood, Buckley, Ramage, and Akpore shall be
dismissed.
2)

Plaintiff files a Motion to Request Counsel [3].

Plaintiff has no constitutional or statutory right to counsel in
this case. In considering the Plaintiff’s motion, the Court asks:
(1) has the indigent Plaintiff made a reasonable attempt to
obtain counsel or been effectively precluded from doing so; and
if so, (2) given the difficulty of the case, does the plaintiff
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appear competent to litigate it himself? Pruitt v. Mote, 503
F.3d 647, 654-55 (7th Cir. 2007) (citing Farmer v. Haas, 990
F.2d 319, 322 (7th Cir.1993)). Plaintiff attached letters he
received from attorneys declining Plaintiff’s requests for
representation and the Court finds that Plaintiff has made a
reasonable effort to obtain counsel. However, the Court finds
that Plaintiff is capable of representing himself at this time.
Plaintiff’s correspondence with the Court has been appropriate,
he can adequately describe the events that occurred in this
case, his motion indicates he has completed some college
coursework, and he has an extensive litigation history.
Plaintiff’s Motion [3] is DENIED with leave to renew. Plaintiff’s
Motion for Status [7] is DENIED as moot.
3)

This case is now in the process of service. Plaintiff is

advised to wait until counsel has appeared for Defendants
before 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. Plaintiff need not submit

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any evidence to the Court at this time, unless otherwise
directed by the Court.
4)

The Court will attempt service on Defendants by

mailing each Defendant a waiver of service. Defendants have
60 days from the date the waiver is sent 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.
5)

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.

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6)

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 Opinion. 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.
7)

This District uses electronic filing, which means that,

after Defense counsel has filed an appearance, Defense counsel
will automatically receive electronic notice of any motion or
other paper filed by Plaintiff with the Clerk. Plaintiff does not
need to mail to Defense counsel copies of motions and other
papers that Plaintiff has filed with the Clerk. However, this
does not apply to discovery requests and responses. Discovery
requests and responses are not filed with the Clerk. Plaintiff
must mail his discovery requests and responses directly to
Defendants' counsel. Discovery requests or responses sent to
the Clerk will be returned unfiled, unless they are attached to
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and the subject of a motion to compel. Discovery does not
begin until Defense counsel has filed an appearance and the
Court has entered a scheduling order, which will explain the
discovery process in more detail.
8)

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.
9)

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.
10) If a Defendants fails to sign and return a waiver of
service to 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).
11) Within 10 days of receiving from Defendants' counsel
an authorization to release medical records, Plaintiff is
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directed to sign and return the authorization to Defendants'
counsel.
12) The clerk is directed to enter the standard order
granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.
ENTERED:

June 2, 2015

FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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