Howlett v. Charleston Police Department ETA et al

Filing 19

MERIT REVIEW ORDER - AMENDED COMPLAINT Entered by Judge James E. Shadid on 11/14/23. IT IS THEREFORE ORDERED: 1) Pursuant to its merit review of the Amended Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff alleges the following claims: a) Defendants Hissong, Darimont, and Meers violated Plaintiff's Fourth Amendment rights by conducting a warrantless entry, search, and arrest on August 12, 2021; b) Defendant Darimont violated Plaintiff's Fourth Amendment rights by (1) releasing police K-9 Vito into the residence and allowing Vito to attack Plaintiff, (2) failing to disengage Vito and allowing him to continue biting Plaintiff's leg, and (3) releasing Vito a second time when Plaintiff was unable to get up due to his injured leg; and c) Defendants Hissong, Darimont, and Meers violated Plaintiff's Fourth Amendment rights by (1) pouncing on top of Plaintiff, kneeing him, and punching him in the ribs, side, and back of his head and (2) dragging Plain tiff through the house and striking him after he was handcuffed. Additional claims shall not be included in the case above, except in the Court's discretion on motion by a party for good cause shown under Federal Rule of Civil Procedure 15. 2) D efendants Charleston Police Department ETA and K9 Officer Vito are DISMISSED for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. § 1915A. The Clerk is directed to TERMINATE these Defendants.3) Plaintiff' ;s Motion to Request Counsel 9 is DENIED.4) Plaintiff's Motion for Entry of Default 13 and Motion to Compel 17 are DENIED, as Defendants have not yet been served with Plaintiff's Amended Complaint.5) Plaintiff's Motion for Status 18 is MOOT. SEE FULL WRITTEN ORDER. (ANW)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
TRAVIS M. HOWLETT,
Plaintiff,
vs.
CHARLESTON POLICE
DEPARTMENT ETA, et al.,
Defendants.

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Case No. 23-2084

MERIT REVIEW ORDER – AMENDED COMPLAINT
Plaintiff, proceeding pro se and incarcerated at Shawnee Correctional Center, files an
Amended Complaint under 42 U.S.C. § 1983 alleging that his constitutional rights were violated
during his arrest on August 12, 2021. (Doc. 8). The case is now before the Court for a merit review
of Plaintiff’s claims.
The Court must “screen” Plaintiff’s Amended Complaint, and through such process,
identify and dismiss any legally insufficient claim, or the entire action if warranted. 28 U.S.C. §
1915A. A claim is legally insufficient if it “(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from
such relief.” Id. In reviewing the Amended Complaint, the Court accepts the factual allegations as
true, liberally construing them in Plaintiff’s favor. See Turley v. Rednour, 729 F.3d 645, 649 (7th
Cir. 2013). 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. United States, 721
F.3d 418, 422 (7th Cir. 2013) (quoted cite omitted).
ALLEGATIONS
Plaintiff names the Charleston Police Department ETA, Lieutenant Brian C. Hissong,
Sergeants Joshua M. Meers and Chris Darimont, and K9 Officer Vito as Defendants.
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Plaintiff alleges that Defendants Hissong, Darimont, and Meers knocked on the door of his
residence at 509 N. 12th Street in Charleston, Illinois on August 12, 2021. The homeowner, Linda
Howlett, answered the door. Defendant Meers asked Ms. Howlett if Plaintiff was inside the house.
Ms. Howlett responded that she had been sleeping and did not know. Defendant Darimont asked
Ms. Howlett if he and his police K-9 named Vito could search the residence for Plaintiff. Ms.
Howlett asked if Defendants had a warrant. Defendant Darimont told Ms. Howlett they did not
have a warrant but would get one. When Ms. Howlett asked Defendants if she had to let them enter
the home without a warrant, Defendant Hissong replied, “Linda we are going in w[h]ether you like
it or not.” (Doc. 8 at p. 7). Ms. Howlett was told to exit the home so Defendant Darimont could
release Vito into the residence.
Plaintiff alleges that he was asleep and was woken by Vito violently biting and thrashing
his lower left leg. Two or three minutes later, Defendant Darimont entered the room “only to stand
by to watch Plaintiff Howlett beg for help expressing that he was asleep.” Id. at p. 8. Defendant
Hissong stated that Plaintiff was lying about being asleep, as Defendants had chased him there on
foot. Defendant Darimont finally removed Vito from Plaintiff’s leg and told Plaintiff to get up.
Plaintiff replied that he could not get up because of his injured leg. Defendant Darimont then
released Vito a second time.
Next, Plaintiff claims that Defendants Hissong, Darimont, and Meers pounced on top of
him, kneed and punched him in the ribs, side, and back of the head, and shouted at Plaintiff to stop
resisting. Vito continued to violently bite his leg. Plaintiff claims he was on his back with his arms
up and was not resisting the officers.

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After being handcuffed, Defendants allegedly dragged Plaintiff through the house and
stopped in the kitchen where they took turns striking him. Plaintiff claims that he was “handcuffed
in clear compliance not resisting arrest.” Id. at p. 11.
Plaintiff alleges he was taken to the hospital in an ambulance, had emergency surgery on
his lower left leg, and spent several days in the hospital recovering.
ANALYSIS
Plaintiff brings a claim against Defendants Hissong, Darimont, and Meers for entering his
residence without a warrant in violation of the Fourth Amendment, which protects “[t]he right of
the people to be secure in their persons ... against unreasonable ... seizures.” Manuel v. City of
Joliet, Ill., 137 S. Ct. 911, 917 (2017). “It is axiomatic that ‘[a] warrantless arrest ... must be
supported by probable cause.’” United States v. Sholola, 124 F.3d 803, 814 (7th Cir. 1997)
(internal citations omitted). “In order to make an arrest without a warrant, the police must have
probable cause, under the totality of the circumstances, to reasonably believe that a particular
individual has committed a crime.” Id.
Here, the Amended Complaint can be read to allege that Defendants entered and searched
Plaintiff’s home without consent, without a warrant, and without the presence of any exigent
circumstances. See United States v. Foxworth, 8 F.3d 540, 544 (7th Cir. 1993) (“Exigent
circumstances are defined as a compelling need for official action and no time to secure a
warrant.”). The warrantless entry, search, and arrest was likely an issue in Plaintiff’s underlying
criminal case. However, it is unclear whether that issue was previously litigated. Giving Plaintiff
the inferences to which he is entitled to at this stage, the Court finds that he has alleged enough to
proceed on a Fourth Amendment claim against Defendants Hissong, Darimont, and Meers.

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Plaintiff also claims that Defendants Hissong, Darimont, and Meers used excessive force
during his arrest. “In general, the use of excessive force to effect an arrest is evaluated under the
Fourth Amendment reasonableness standard, assessing the objective facts which confronted an
officer at the time and taking into account, 1) the severity of the crime at issue, 2) the immediate
threat to the safety of the officers or others posed by the suspect, and 3) the resistance of the
suspect, including active resistance or attempting to resist arrest by flight.” Tilson v. City of
Elkhart, Ind., 317 F. Supp. 2d 861, 866 (N.D. Ind. 2003), aff'd sub nom. Tilson v. City of Elkhart,
Ind., 96 Fed. Appx. 413 (7th Cir. 2004) (citing Graham v. Connor, 490 U.S. 386 (1989)). “The
question in Fourth Amendment use of force cases is ‘whether the officers’ actions are objectively
reasonable’ in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.” Tilson, 317 F. Supp. 2d at 866-67 (quoting Graham, 490 U.S. at
397) (defendants not liable for excessive force where police dog bit a fleeing suspect). “An
officer’s use of force is unreasonable if, judging from the totality of the circumstances at the time
of the arrest, the officer uses greater force than was reasonably necessary to effectuate the arrest.”
Phillips v. Cmty. Ins. Corp., 678 F.3d 513, 519 (7th Cir. 2012) (citing Gonzalez v. City of Elgin,
578 F.3d 526, 539 (7th Cir. 2009)).
The force initially used in this case involved the use of police K-9 Vito. Plaintiff alleges he
was asleep in bed and was woken when Vito attacked his leg. Two or three minutes after Vito
began to attack, Defendant Darimont entered the room “only to stand by to watch” as Plaintiff
begged for help. (Doc. 8 at p. 8). Based on Plaintiff’s allegations, the Court finds that Plaintiff has
stated a Fourth Amendment excessive force claim against Defendant Darimont for (1) releasing
Vito into the residence and allowing Vito to attack Plaintiff, (2) for failing to disengage Vito and
allowing him to continue biting Plaintiff’s leg, and (3) for releasing Vito a second time when

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Plaintiff was unable to get up due to his injured leg. See Williams v. Wakeley, No. 2:21-CV-202TLS, 2023 WL 5627092, at *4 (N.D. Ind. Aug. 30, 2023); Becker v. Elfreich, 821 F.3d 920, 927
(7th Cir. 2016).
In addition, Plaintiff has stated a Fourth Amendment excessive force claim against
Defendants Hissong, Darimont, and Meers for (1) pouncing on top of Plaintiff, kneeing him, and
punching him in the ribs, side, and back of his head and (2) for dragging Plaintiff through the house
and striking him after he was handcuffed.
Finally, Plaintiff files suit against the Charleston Police Department and police K-9 Vito.
Neither are proper Defendants. It appears Plaintiff is trying to hold the Charleston Police
Department liable as the police officers’ employer. However, “under § 1983, local governments
are responsible only for ‘their own illegal acts.’ They are not vicariously liable under § 1983 for
their employees' actions.” Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (emphasis in
original) (internal citations omitted). “Plaintiffs who seek to impose liability on local governments
under § 1983 must prove that ‘action pursuant to official municipal policy’ caused their injury.”
Id. (citing Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691-92 (1978)). The
Charleston Police Department may be liable only if it had a policy or custom which was the moving
force behind the deprivation of rights. Teesdale v. City of Chicago, 690 F.3d 829, 833 (7th Cir.
2012). A § 1983 suit cannot be maintained against a dog. See Cilek v. Hobart Police Dep't, No.
2:15-CV-151 RL, 2015 WL 7300532, at *3 (N.D. Ind. Nov. 18, 2015) (citing Dye v. Wargo, 253
F.3d 296 (7th Cir. 2001) (dismissing K-9 Spike as a defendant in a section 1983 suit)). Therefore,
Defendants Charleston Police Department ETA and K9 Officer Vito are dismissed.

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MOTION TO REQUEST
Plaintiff filed a Motion to Request Counsel asking the Court to appoint an attorney to
represent him. (Doc. 9). “There is no right to court-appointed counsel in federal civil litigation.”
Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014). When evaluating a Motion to Request
Counsel, the Court must consider: “(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 appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647,
655 (7th Cir. 2007). “When evaluating a plaintiff’s competence, district courts should normally
consider the plaintiff’s literacy, communication skills, education level, and litigation experience.”
Bracey v. Grondin, 712 F.3d 1012, 1018 n.3 (7th Cir. 2013) (citing Pruitt, 503 F.3d at 655). The
inquiry is individualized, taking all the relevant facts into consideration, including the stage of the
litigation. Navejar v. Igiola, 718 F.3d 692, 696 (7th Cir. 2013). The Court may also consider “the
perceived merits of–or likelihood of success on–an indigent plaintiff’s claims in its decision
whether to allocate scarce pro bono counsel resources to the case before it.” Watts v. Kidman, 42
F.4th 755, 764 (7th Cir. 2022).
Here, the Court finds Plaintiff made a reasonable attempt to secure counsel on his own.
(Doc. 5 at pp. 3-14). Plaintiff asks the Court to appoint counsel to represent him because his
imprisonment will impact his ability to litigate this case; the issues in this case are complex and
will require significant research and investigation, including reviewing several hours of body cam
and dash cam footage, which Plaintiff has no way to access or view; and Plaintiff has limited
access to the law library and no legal knowledge. Id. at p. 2. Plaintiff indicates he earned his GED.
Id. Thus far, his pleadings have been coherent and supported by accompanying exhibits. There is
no indication that he has any physical or psychological condition that might impair his ability to

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litigate this case himself. The Court finds that Plaintiff appears competent to litigate the case
himself, especially at this early stage in the litigation process. Plaintiff’s Motion to Request
Counsel is denied.
IT IS THEREFORE ORDERED:
1)

Pursuant to its merit review of the Amended Complaint under 28 U.S.C. § 1915A, the

Court finds that Plaintiff alleges the following claims: a) Defendants Hissong, Darimont, and
Meers violated Plaintiff's Fourth Amendment rights by conducting a warrantless entry, search, and
arrest on August 12, 2021; b) Defendant Darimont violated Plaintiff's Fourth Amendment rights
by (1) releasing police K-9 Vito into the residence and allowing Vito to attack Plaintiff, (2) failing
to disengage Vito and allowing him to continue biting Plaintiff's leg, and (3) releasing Vito a
second time when Plaintiff was unable to get up due to his injured leg; and c) Defendants Hissong,
Darimont, and Meers violated Plaintiff's Fourth Amendment rights by (1) pouncing on top of
Plaintiff, kneeing him, and punching him in the ribs, side, and back of his head and (2) dragging
Plaintiff through the house and striking him after he was handcuffed. Additional claims shall not
be included in the case above, except in the Court's discretion on motion by a party for good cause
shown under Federal Rule of Civil Procedure 15.
2)

Defendants Charleston Police Department ETA and K9 Officer Vito are DISMISSED

for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. § 1915A.
The Clerk is directed to TERMINATE these Defendants.
3)

Plaintiff's Motion to Request Counsel [9] is DENIED.

4)

Plaintiff's Motion for Entry of Default [13] and Motion to Compel [17] are DENIED, as

Defendants have not yet been served with Plaintiff's Amended Complaint.
5)

Plaintiff's Motion for Status [18] is MOOT.

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6)

This case is now in the process of service. The Court advises Plaintiff to wait until

counsel has appeared for Defendants before filing any motions 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 a waiver of service. If

Defendants fail 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. Marshals
Service on Defendants and will require Defendants to pay the full costs of formal service pursuant
to Federal Rule of Civil Procedure 4(d)(2).
8)

Defendants shall file an answer within 60 days of the date the Clerk sends the waiver of

service. 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 Defendants file a motion. Therefore, no
response to the answer is necessary or will be considered. If Defendants have not filed an answer
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 a
scheduling order setting discovery and dispositive motion deadlines.
9)

If Defendants no longer work at the address Plaintiff provided, the entity for whom

Defendants worked while at that address shall submit to the Clerk Defendants’ current work
address, or, if not known, Defendants’ forwarding address. This information shall be used only for

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effectuating service. Documentation of Defendants’ forwarding address shall be retained only by
the Clerk and shall not be maintained in the public docket nor disclosed by the Clerk.
10)

This District uses electronic filing, which means that after Defendants’ counsel has filed

an appearance, Defendants’ 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 Defendants’ counsel
copies of motions and other documents 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 and the subject of a motion to compel. Discovery does not begin until Defendants’ 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 Plaintiff’s place of

confinement. Counsel for Defendants shall arrange the time for the deposition.
12)

Plaintiff shall immediately inform 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)

Plaintiff shall be provided a copy of all pertinent medical records upon request.

14)

Within 10 days of receiving from defense counsel an authorization to release medical

records, Plaintiff is directed to sign and return the authorization to defense counsel. The Clerk is
directed to enter the standard qualified protective order pursuant to the Health Insurance Portability
and Accountability Act.

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15)

The Clerk is directed to 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.

ENTERED:

11/14/2023
s/ James E. Shadid
James E. Shadid
United States District Judge

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