Bentz v. Fischer et al

Filing 27

OPINION entered by Judge Sue E. Myerscough on 5/22/2012. Plaintiff's motion to appoint counsel is denied, d/e 19 . Plaintiff's motions for a preliminary injunction are denied, with leave to renew, d/e's 13 and 14 . The followin g Defendants are dismissed for failure to state a claim against them: Ogle; Dement; Benton; Randle; Taylor; Godinez; Pfister; Ott and Hardy. This cause is set for further scheduling procedures under Fed. R. Civ. P. 16 on 7/23/2012 at 1:30 pm (or as soon as the Court can reach the case) before Judge Sue E Myerscough, by video conference. (MAS, ilcd)

E-FILED

Tuesday, 22 May, 2012 09:52:26 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DAVID ROBERT BENTZ,

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Plaintiff,
v.

BRENT FISCHER, et al.,
Defendants.

11-CV-3403

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and currently incarcerated in Menard
Correctional Center, pursues claims of excessive force and deliberate
indifference to his serious medical needs. The case is before the Court for
a merit review pursuant to 28 U.S.C. § 1915A.
LEGAL STANDARD
The Court is required by § 1915A to review a Complaint filed by a
prisoner against a governmental entity or officer and, through such
process, to identify cognizable claims, dismissing any claim that is

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“frivolous, malicious, or fails to state a claim upon which relief may be
granted.” A hearing is held if necessary to assist the Court in this review,
but, in this case, the Court concludes that no hearing is necessary. The
Amended Complaint is clear enough on its own for this Court to perform
its merit review of Plaintiff’s Complaint.
The review standard under § 1915A is the same as the notice
pleading standard under Federal Rule of Civil Procedure 12(b)(6).
Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). To state a
claim, the allegations must set forth a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Factual allegations must give enough detail to give “‘fair notice
of what the . . . claim is and the grounds upon which it rests.’” EEOC v.
Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007), quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(add’l citation
omitted). The factual “allegations must plausibly suggest that the
plaintiff has a right to relief, raising that possibility above a ‘speculative
level.’” Id., quoting Bell Atlantic, 550 U.S. at 555. “A claim has facial

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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 . . . . Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic, 550
U.S. at 555-56. However, pro se pleadings are liberally construed when
applying this standard. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.
2009).
ALLEGATIONS
On October 31, 2009, while Plaintiff was detained at the Adams
County Jail, Defendant Smith allegedly struck Plaintiff’s hand with a
weapon, fracturing Plaintiff’s hand. Jail officers delayed taking Plaintiff
to the medical unit for three days, despite his pleas and obvious injury.
The medical professionals working at the Jail allegedly failed or refused to
prescribe pain medication and failed to treat Plaintiff’s broken hand, even
though x-rays showed a fracture. Plaintiff alleges that the Jail has an
official policy of substituting cheap, ineffective treatment for needed

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treatment in order to save costs.
Plaintiff was taken to a doctor at Quincy Medical Group,
Defendant Dement, who allegedly “erroneously” declared that the hand
was not broken. (Complaint, p. 7). Dr. Dement did prescribe a splint
and recommended a follow-up visit, but the Jail Defendants failed or
refused to take Plaintiff to the follow up appointment. The Jail
Defendants also delayed or denied Plaintiff his prescribed pain
medication and generally conspired to keep Plaintiff from obtaining the
medical care he needed.
The lack of medical care continued when Plaintiff was transferred
from the Jail into the IDOC. Defendants at Graham, Stateville, and
Pontiac Correctional Center all denied Plaintiff the medical diagnosis and
treatment he needed to have his hand fixed. Additionally, Plaintiff’s
prescribed hand brace was confiscated and pain medication was not
provided. Plaintiff appears to allege that he still has not received
necessary medical treatment for his hand. He fears permanent disability.
ANALYSIS

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I.

Plaintiff states claims for excessive force and deliberate indifference
to his serious medical needs resulting from that excessive force.
The Court presumes that Plaintiff was a pretrial detainee when

these incidents occurred, which means that his claims are analyzed under
the due process clause of the Fourteenth Amendment. For Plaintiff’s
excessive force claim, the Fourteenth Amendment entitles Plaintiff to “at
least as much, and probably more, protection against punishment as does
the Eighth Amendment’s ban on cruel and unusual punishment.” Forrest
v. Prine, 620 F.3d 739, 744 (7th Cir. 2010); Lewis v. Downey, 581 F.3d
467, 474 (7th Cir. 2009)(in an excessive force claim, due process clause
prohibits all “punishment,” providing “broader protection” than the
Eighth Amendment, “[a]lthough the exact contours of any additional
safeguards remain undefined . . . .”).
Plaintiff states a constitutional excessive force claim against
Defendant Scott Smith, who allegedly maliciously struck Plaintiff with a
weapon, fracturing Plaintiff’s hand. See Hudson v. McMillian, 503 U.S.
1, 5 (1992)(Excessive force is force applied "maliciously and sadistically
to cause harm," as opposed to force applied "in a good-faith effort to
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maintain or restore discipline."). Plaintiff also sets forth arguable state
law claims for assault and battery against Defendant Smith.
Plaintiff also states a claim for deliberate indifference to his hand
injury. A more developed record may show that many of the Defendants
were not personally responsible for the lack of medical care provided to
Plaintiff. For example, non-medical professionals are generally entitled to
rely on the treatment decisions of the medical professionals. Greeno v.
Daley, 414 F.3d 645, 656 (7th Cir. 2005)(“‘If a prisoner is under the care
of medical experts... a nonmedical prison official will generally be justified
in believing that the prisoner is in capable hands.’”)(quoted cite omitted).
However, that determination would be premature on this record.
Plaintiff alleges that his hand was obviously broken and that the Jail
officers intentionally delayed his access to medical treatment and then
refused to follow prescribed orders.1
1

The Court notes that Plaintiffs’ allegations regarding a conspiracy
to prevent him from obtaining medical care is not a separate claim, but is
instead a different theory to recover on the same claim. See Libra v. City
of Litchfield, 893 F.Supp. 1370, 1375 (C.D. Ill. 1995)(civil conspiracy
claim, "as a practical matter, . . . simply broadens the scope of liability
under § 1983 to include individuals who were part of a conspiracy but
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However, Plaintiff states no federal claims against the doctors
outside the prisons and the jail—Defendants Ogle and Dement. Private
persons are generally not “state actors” absent collusion with a
government official to deprive an individual of constitutional rights or
“‘willful participa[tion]’” in state actions. Thurman v. Village of
Homewood, 446 F.3d 682, 687 (7th Cir. 2006). No plausible inference
arises that Ogle or Dement were state actors. If Plaintiff is trying to
pursue a state law malpractice claim against Defendants Ogle and
Dement, he must attach the documents required by 735 ILCS
5/2-622(1).
Plaintiff also states no claim against the prison wardens, the current
and former IDOC Directors and Acting Director, or the Administrative
Review Board Members. Administrators are not liable for their
subordinates’ constitutional violations solely because they are in charge,
and, in this context, ruling against Plaintiff in a grievance is not a
constitutional violation. Chavez v. Illinois State Police, 251 F.3d 612,
did not act directly to deprive a plaintiff of his or her constitutional
rights.").
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651 (7th Cir. 2001)(no respondeat superior liability under § 1983);
George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (“Only persons
who cause or participate in the violations are responsible. Ruling against
a prisoner on an administrative complaint does not cause or contribute to
the violation.”); Johnson v. Snyder, 444 F.3d 579, 583-84 (7th
Cir.2006)(liability under § 1983 requires personal involvement).
Defendants Ogle, Dement, Benton, Randle, Taylor, Godinez, Pfister, Ott,
and Hardy will therefore be dismissed.
Lastly, Plaintiff asserts that Defendants’ refusal to fix his hand
violates his First Amendment rights because he has difficulty writing,
drawing, and painting. However, this is a consequence of the underlying
constitutional violations (the excessive force and failure to provide
medical treatment), not an independent violation of the First
Amendment. The consequences suffered by Plaintiff may be part of his
damages,2 but are not grounds for an additional claim.
II.

Plaintiff’s motion for counsel is denied.
2

The Court is not determining at this point whether such damages would be
recoverable.
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Plaintiff has filed a motion for the appointment of pro bono
counsel and has demonstrated reasonable attempts to find counsel on his
own. The Court may therefore proceed to the next step in the inquiry:
“given the difficulty of the case, does the plaintiff 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). As the Seventh
Circuit stated in Pruitt:
the difficulty of the case is considered against the plaintiff's
litigation capabilities, and those capabilities are examined in
light of the challenges specific to the case at hand. The
question is not whether a lawyer would present the case more
effectively than the pro se plaintiff; “if that were the test,
‘district judges would be required to request counsel for every
indigent litigant.’”
Pruitt, 503 F.3d at 655 (quoted and other cites omitted). A plaintiff's
“literacy, communication skills, educational level, and litigation
experience” are relevant factors, though there are no "fixed requirements."
Id. at 655. “Intellectual capacity and psychological history, to the extent
that they are known, are also relevant. The plaintiff's performance up to
that point in the litigation may be some evidence of these factors, but, in

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the end, the estimation as to whether a plaintiff can handle his own case
must be ‘a practical one, made in light of whatever relevant evidence is
available on the question.’” Santiago v. Walls, 599 F.3d 749, 762 (7th
Cir. 2010), quoting Pruitt, 503 F.3d at 656. The Court cannot require
an attorney to accept pro bono appointment on a civil case such as this.
Pruitt, 503 F.3d at 653 (in forma pauperis statute “‘does not authorize
the federal courts to make coercive appointments of counsel.’”)(quoted
cite omitted).
Plaintiff does not say what his education level is, but his Complaint
is well written, coherently sets forth relevant facts, and demonstrates
some knowledge of applicable law and civil procedure. His motion for
counsel and his two preliminary injunction motions also demonstrate his
competence to proceed pro se. Plaintiff appears to have one other
pending case in federal court, and the motions he has filed therein also
demonstrate his competence. Bentz v. Godinez, 12-CV-1753 (N.D. Ill.,
Judge Leinenweber). Further, the claims in this case appear relatively
simple. Plaintiff can testify personally to the excessive force, his pain and

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difficulty functioning, and his attempts to obtain help. He should also be
able to obtain, through simple discovery requests, his medical records and
the recommendations of the outside consultants. See Ledford v. Sullivan,
105 F.3d 354, 358 (7th Cir. 1997)(expert testimony not necessarily
required to establish deliberate indifference). Copies of grievances and
responses thereto should also be obtainable in discovery. Accordingly,
based on the current record, the Court concludes that Plaintiff appears
competent to proceed pro se.
IT IS THEREFORE ORDERED:
1) Pursuant to a merit review of the Complaint under 28 U.S.C. §
1915A, the Court finds that Plaintiff states a federal claim for excessive
force against Defendant Smith, and state law claims against Smith for
assault and battery. Plaintiff also states a claim for deliberate
indifference to his serious medical needs arising from injuries and pain
caused by that excessive force.
2) Plaintiff’s First Amendment claim, to the extent he pursues one,
is dismissed for failure to state a claim.

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3) The following Defendants are dismissed for failure to state a
claim against them: Ogle, Dement, Benton, Randle, Taylor, Godinez,
Pfister, Ott, and Hardy.
4) This case proceeds solely on the claims identified in paragraph
one above. 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.
5) Plaintiff’s motion to appoint counsel is denied (d/e 19).
6) Plaintiff’s motions for a preliminary injunction are denied, with
leave to renew (d/e’s 13, 14). Plaintiff’s first motion for a preliminary
injunction seeks treatment for his hand and medical permits. At this
point Plaintiff has not yet demonstrated a likelihood of success on the
merits of his medical claims. “‘[A] preliminary injunction is an exercise
of a very far-reaching power, never to be indulged in except in a case
clearly demanding it.’” Girl Scouts of Manitou Council, Inc. v. Girl
Scouts of U.S. of America, 549 F.3d 1079, 1085 (7th Cir. 2008)(quoted
cites omitted). Plaintiff must do more than state a claim under notice

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pleading standards to obtain preliminary injunctive relief.
Plaintiff’s second motion for a preliminary injunction asks for
access to the law library and a stop to alleged retaliation. These
allegations do not demonstrate irreparable harm. Further, a blanket
order prohibiting undefined “retaliation” would not satisfy the
requirements for preliminary injunctive relief under 18 U.S.C. §
3626(a)(2). Lastly, Plaintiff does not need access to the law library at
this time. After Defendants are served and discovery deadlines are set,
Plaintiff may file a motion to access the library.
7) The Clerk is directed to send to each Defendant pursuant to this
District's internal procedures: 1) a Notice of Lawsuit and Request for
Waiver of Service; 2) a Waiver of Service; 3) a copy of the Complaint;
and, 4) this order.
8) If a Defendant 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 on that Defendant and will
require that Defendant to pay the full costs of formal service pursuant to

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Federal Rule of Civil Procedure 4(d)(2).
9) 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 effecting 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.
10) Defendants shall file an answer within the time prescribed by
Local Rule. 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.
11) Plaintiff shall serve upon any Defendant who has been served
but who is not represented by counsel a copy of every filing submitted by
Plaintiff for consideration by the Court, and shall also file a certificate of
service stating the date on which the copy was mailed. Any paper

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received by a District Judge or Magistrate Judge that has not been filed
with the Clerk or that fails to include a required certificate of service will
be stricken by the Court.
12) 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.
13) This cause is set for further scheduling procedures under Fed.
R. Civ. P. 16 on July 23, 2012 at 1:30 p.m. (or as soon as the Court can
reach the case) before U. S. District Judge Sue E. Myerscough, by video
conference. The Clerk is directed to give Plaintiff's place of confinement
notice of the date and time of the conference, and to issue the
appropriate process to secure the Plaintiff's presence at the conference.
14) Counsel for Defendants is hereby granted leave to depose

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Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the depositions.
15) Plaintiff shall immediately notify the Court 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.
16) The Clerk is to notify the parties of their option to consent to
disposition of this case before a United States Magistrate Judge by
providing Plaintiff with a magistrate consent form. Upon receipt of a
signed consent from Plaintiff, the Clerk shall forward the consent to
Defendants for consideration.
ENTERED:

May 22, 2012

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

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