Briseno v. Perkins et al

Filing 10

MERIT REVIEW OPINION entered by Judge Joe Billy McDade on 5/12/2015: Plaintiff's motion for counsel is denied (5); Plaintiff's motion for status is denied as moot (9); The clerk is directed to add Kankakee County as a Defendant; The clerk i s directed to terminate Defendants Perkins, ONeil, and Tobeck; The clerk is directed to attempt service on Defendants pursuant to the standard procedures; The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. SEE FULL WRITTEN ORDER.(Clerk set Rule 16 Deadline for 7/13/2015.) (JRK, ilcd)

E-FILED

Tuesday, 12 May, 2015 09:29:08 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
JUAN BRISENO,
Plaintiff,
v.
SHERIFF BUKOWSKI,
C/O ROBERTS,
C/O O’NEIL,
C/O TOBECK,
C/O PERKINS, and
C/O PAQUETTE,
Defendants.

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14-CV-2263

MERIT REVIEW OPINION
JOE BILLY MCDADE, U.S. District Judge.
Plaintiff, proceeding pro se and incarcerated in the Jerome
Combs Detention Center, seeks leave to proceed in forma pauperis.
The case is before the Court for a merit review pursuant to 28
U.S.C. § 1915A.
In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). However,
conclusory statements and labels are insufficient. Enough facts
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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)(quoted
cite omitted).
ALLEGATIONS
On August 26, 2014, Plaintiff was in the dayroom of the
Jerome Coombs Detention Center when a fight broke out between
two detainees. Plaintiff tried to break up the fight, whereupon
another detainee came “out of nowhere” and started attacking
Plaintiff. (Aff. of Demetrius Moore, attached to Complaint;
Complaint, p. 4.) Plaintiff allegedly tried to escape the attack by
running to a door, but Officers Roberts and Paquette refused to
open the door. Plaintiff called repeatedly for help while the detainee
continued to strike Plaintiff about the face with closed fists. After a
“very long time,” Officer Roberts came into the dayroom and tasered
Plaintiff in the stomach with no warning, even though Plaintiff had
not been the aggressor and had not disobeyed any orders. Officers
Perkins, O’Neil, Paquette, and Tobeck allegedly stood by and failed
to intervene to prevent Officer Roberts’ tasering. (Complaint, paras.
1-3.)

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Plaintiff also alleges that Sheriff Bukowski fosters an
environment which condones or turns a blind eye to the kind of
alleged excessive force used on Plaintiff by Officer Roberts. Plaintiff
alleges that:
There is no effective training, oversight or accountability
of J.C.D.C. staff. There’s a lack of professionalism and
the staff are violent, sadistic, cruel and racist. These
c/o’s feel that they are justified to shoot a pre-trial
detainee at any time for any reason with a taser . . . .
(Complaint, para. 7.) Plaintiff alleges that officers are
permitted to taser a detainee if the detainee is wearing his
identification badge incorrectly and for other minor
infractions. The Jail administration allegedly conceals the
unlawful acts of the Jail’s employees, especially unlawful acts
as to detainees with mental illnesses. (Complaint, para. 8.)
Because of Officer Roberts’ tasering, Plaintiff’s anxiety has
worsened. He allegedly has trouble sleeping and wakes up in
“cold sweats.” (Complaint, para. 4.)
ANALYSIS
Plaintiff does not expressly state that he was a pretrial
detainee when the incident occurred. For purposes of this order,
the Court assumes that Plaintiff was a pretrial detainee, rather than
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an inmate serving his conviction. The difference is important
because the legal standard for an excessive force claim under the
Fourteenth Amendment, which applies to detainees, is arguably
different than the legal standard for an excessive force claim under
the Eighth Amendment, which applies to inmates serving their
sentences. Liability arises under the Eighth Amendment when an
officer uses force “maliciously and sadistically for the very purpose
of causing harm.” Santiago v. Walls, 599 F.3d 749, 757 (7th Cir.
2010)(affirming dismissal of Eighth Amendment excessive force
claim at merit review stage where Plaintiff admitted he had been
fighting and officers had used mace and handcuffs). A Fourteenth
Amendment excessive force claim is based on a more objective
approach, though the officer’s subjective intent is still relevant.
Kingsley v. Hendrickson, 744 F.3d 443, 453 (7th Cir.
2014)(Fourteenth Amendment excessive force claim requires at
least reckless intent).
A failure-to-protect claim, in contrast, is essentially the same
standard whether the plaintiff is a pretrial detainee or an inmate.
For a failure-to-protect claim, the allegations must allow a plausible
inference that the defendants were deliberately indifferent to a
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known and substantial risk of serious harm. Brown v. Budz, 398
F.3d 904, 909, 913 (7th Cir.2005)(analyzing civil detainee’s failureto-protect claim using Eighth Amendment standards). Deliberate
indifferences means that the defendants knew about and
consciously disregarded a substantial risk of serious harm, failing
to take reasonable measure to deal with that risk. Id. at 914.
At this point Plaintiff’s allegations allow a plausible inference
that Officer Roberts used excessive force. According to Plaintiff,
Officer Roberts tased Plaintiff, even though Plaintiff posed no
security risk, did not disobey any orders, and was being attacked.
Additionally, a plausible failure-to-protect claim is stated against
Officers Roberts and Paquette, who allegedly watched while Plaintiff
was attacked and refused to allow Plaintiff out of the dayroom or
quickly enter the dayroom to stop the attack. A developed factual
record at summary judgment may show otherwise, but the Court
believes dismissal of these two claims would be premature.
However, no allegations suggest that Officers Perkins, O’Neil, or
Tobeck watched while Plaintiff was attacked, so no failure-to-protect
claim proceeds against them at this point.

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Plaintiff asserts that Officers Perkins, O’Neil, Tobeck, and
Paquette failed to intervene to stop Officer Roberts’ alleged excessive
force. A failure to intervene claim arises only if the officers at the
scene knew that Officer Roberts was going to use excessive force
and had a realistic opportunity to prevent that excessive force.
Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014)(no failure to
intervene claim where other officers had no time to stop one alleged
act of excessive force). According to Plaintiff’s own allegations and
the affidavits attached to the complaint, Officer Roberts came
through the door, “said not one word or warning to anyone,”
(Complaint, para. 2), and tasered Plaintiff once in the stomach.
These allegations do not allow a plausible inference that the other
officers had a reasonable opportunity to stop Officer Roberts from
tasing Plaintiff. At this point, Plaintiff’s failure to intervene claim
will be dismissed, without prejudice.
As to Sheriff Bukowski, he was not present during the
incident. However, Plaintiff alleges that Sheriff Bukowski has
implemented a policy of condoning or turning a blind eye to the
unnecessary use of tasers against detainees and has failed to train

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his employees on the appropriate use of tasers. The evidentiary
burden on this kind of claim is high:
The failure to provide adequate training to its employees
may be a basis for imposing liability on a municipality or
private corporation, but as with any other policy or
practice for which the plaintiff seeks to hold the
municipal or corporate defendant liable, the plaintiff
must show that the failure to train reflects a conscious
choice among alternatives that evinces a deliberate
indifference to the rights of the individuals with whom
those employees will interact.
Rice ex rel. Rice v. Correctional Medical Services, 675 F.3d 650,
675 (7th Cir. 2012). However, dismissal of an
unconstitutional policy claim against the Sheriff would be
premature.
On a separate matter, Plaintiff moves for the appointment
of pro bono counsel. Plaintiff appears competent to proceed
pro se in light of the relatively simple nature of his claims.
Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007).
Plaintiff’s complaint demonstrates that he has personal
knowledge of many of the relevant facts underlying his claims,
as well as knowledge of the applicable law and legal procedure.
Plaintiff should also be able to obtain additional relevant
evidence through discovery requests. Plaintiff may renew his
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request for counsel on a more developed record. If Plaintiff
renews his request for counsel, Plaintiff should set forth his
educational level and any jobs he has held inside or outside
prison.
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
constitutional claims: (1) excessive force claim against Defendant
Roberts; (2) failure-to-protect claim against Defendants Roberts and
Paquette; and, (3) an unconstitutional policy or practice claim
against Sheriff Bukowski in his official capacity regarding the use of
tasers.
2)

Plaintiff’s failure to intervene claim is dismissed, without

prejudice.
3)

Defendants Perkins, O’Neil, and Tobeck are dismissed,

without prejudice.
4)

This case proceeds solely on the claims identified in

paragraph one. 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.
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5)

Plaintiff’s request in his Complaint to add Kankakee

County as a necessary party for purposes of indemnification is
granted. 745 ILCS 10/9-102.
6)

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 any evidence to the
Court at this time, unless otherwise directed by the Court.
7)

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.
8)

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
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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.
9)

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.
10)

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
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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 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.
11)

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.
12)

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.
13)

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
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to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).
14)

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.
15)

Plaintiff’s motion for counsel is denied (5).

16)

Plaintiff’s motion for status is denied as moot (9).

17)

The clerk is directed to add Kankakee County as a

Defendant.
18)

The clerk is directed to terminate Defendants

Perkins, O’Neil, and Tobeck.
19)

The clerk is directed to attempt service on

Defendants pursuant to the standard procedures.
20)

The Clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: 5/12/2015
FOR THE COURT:
s/Joe Billy McDade
JOE BILLY MCDADE
UNITED STATES DISTRICT JUDGE
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