Dooley v. Kibby et al
Filing
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OPINION entered by Judge Sue E. Myerscough on 5/18/2012. Plaintiff's petition to proceed in forma pauperis is granted, d/e 2 . Defendants Kibby and Clayton are dismissed for failure to state a claim against them. Plaintiff's motion for the Court to order Defendants to stop retaliating against him is denied, d/e 10 . 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 (court to initiate conference) by video conference. Entered by Judge Sue E. Myerscough on 5/18/2012. (MAS, ilcd)
E-FILED
Friday, 18 May, 2012 02:07:18 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
CHARLES DOOLEY,
Plaintiff,
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v.
ALFREDA KIBBY, et al.,
Defendants.
12-CV-3006
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and currently detained in the Rushville
Treatment and Detention Center, seeks leave to proceed in forma
pauperis on his claim of excessive force, inhumane conditions of
confinement, and punishment without procedural due process.
The “privilege to proceed without posting security for costs and fees
is reserved to the many truly impoverished litigants who, within the
District Court's sound discretion, would remain without legal remedy if
such privilege were not afforded to them.” Brewster v. North Am. Van
Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). Additionally, a court
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must dismiss cases proceeding in forma pauperis “at any time” if the
action is frivolous, malicious, or fails to state a claim, even if part of the
filing fee has been paid. 28 U.S.C. § 1915(d)(2). Accordingly, this Court
grants leave to proceed in forma pauperis only if the complaint states a
federal claim. A hearing was scheduled to assist in this review, but the
hearing will be cancelled as unnecessary.
LEGAL STANDARD
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 plausibility when the plaintiff pleads factual content that
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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
Plaintiff is confined at the Rushville Treatment and Detention
Center pursuant to the Illinois Sexually Violent Persons Act.
On or about July 9, 2011, Plaintiff was directed several times over
the intercom to come to the kitchen and work. Plaintiff refused because
it was his day off. Eventually, Defendant Haage came to Plaintiff’s room
and directed him to back up to the access hole in the door so that
Plaintiff could be handcuffed. Plaintiff refused, and Haage called in an
extraction team of six members.
Plaintiff capitulated when the extraction team arrived, backing up
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to the chuck hole with his hands behind him. After cuffs were placed,
one of the extraction team members yanked the chain forcefully, pulling
Plaintiff’s hands up to his shoulders, causing “extensive damage” to
Plaintiff’s right hand. The incident was allegedly captured on video tape.
The members of the extraction team were Defendants Chenoweth, Angel,
Zimmerman, Keller, Teel, and Maloney.
Plaintiff was then forced to walk backwards to the health care unit
and placed in a “glass jail cell.” His clothes were torn off and the cell
mattress was removed. For three days, the cell lacked operable plumbing
or a mattress. Plaintiff was given only four squares of toilet paper on his
third day.
Plaintiff was written a disciplinary report based on the incident,
which apparently resulted in his segregation for thirty days. Plaintiff
appears to be alleging that he did not receive adequate notice of the
charges against him. He alleges that Defendant McAdory ordered the
imposition of the segregation.
ANALYSIS
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Plaintiff states an excessive force claim based on the yanking of his
arms up behind his back after he was cuffed. According to his
allegations, he was no longer resisting, and thus no force was necessary.
See Hudson v. McMillian, 503 U.S. 1, 5 (1992)(force used against an
inmate is unconstitutional if it is applied “‘maliciously and sadistically for
the very purpose of causing harm,’” as opposed to applied “‘in a
good-faith effort to maintain or restore discipline.’”)(other citations
omitted).1 This claim will proceed against the extraction team members
and Defendant Haage.
Plaintiff also states an arguable claim for enduring inhuman
conditions of confinement for three days in segregation without toilet
paper, a mattress, or working plumbing. Which Defendants are
personally responsible for these conditions is not clear. Plaintiff does
mention an officer Parsons, but he is not listed as a Defendant. At this
The Fourteenth Amendment applies the standard, not the Eighth
Amendment, but the difference is immaterial at this point in light of Plaintiff’s
allegations. See Forrest v. Prine, 620 F.3d 739, 744 (7th Cir. 2010)("The Fourteenth
Amendment right to due process provides at least as much, and probably more,
protection against punishment as does the Eighth Amendment's ban on cruel and
unusual punishment.")
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point, the claim will proceed against Defendants Haage and McAdory.
Plaintiff may also be pursuing a procedural due process claim based
on his 30-day segregation. He appears to allege inadequate notice of the
charges. Whether Plaintiff suffered the deprivation of a constitutionally
protected liberty interest is not clear. However, this determination
should be made on a more developed record. Plaintiff does not name the
Behavioral Committee members as defendants, but he does allege that
Defendant McAdory was the one who ordered the punishment.
Accordingly, this claim will proceed against Defendant McAdory at this
point.
No plausible claim is stated against Defendant Kibby, the acting
director at the time. She cannot be held liable for the constitutional
violations of her subordinates solely because she was in charge, and no
plausible inference arises that she was personally involved in any of the
deprivations. See Chavez v. Illinois State Police, 251 F.3d 612, 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
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or participate in the violations are responsible. Ruling against a prisoner
on an administrative complaint does not cause or contribute to the
violation.”). Similarly, no claim is stated against Defendant Clayton,
whose only action was to fail to investigate the incident at Plaintiff’s
urging.
IT IS THEREFORE ORDERED:
1) Plaintiff’s petition to proceed in forma pauperis is granted (d/e
2). Pursuant to its review of the Complaint, the Court finds that Plaintiff
states the following federal claims: a) an excessive force claim against
Defendants Haage, Chenoweth, Angel, Zimmerman, Keller, Teel, and
Maloney; b) an inhuman conditions-of-confinement claim against
Defendants McAdory and Haage; and c) a procedural due process claim
against Defendant McAdory. 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) Defendants Kibby and Clayton are dismissed for failure to state
a claim against them.
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3) Plaintiff’s motion for the Court to order Defendants to stop
retaliating against him is denied (d/e 10). “‘[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 make
allegations to obtain preliminary injunctive relief. He must provide
evidence to show that he has some likelihood of success on his claims.
He must also demonstrate that he will suffer irreparable harm without an
injunction. At this point, Plaintiff has shown neither.
4) The Clerk is directed to attempt service of the Complaint and
this order on each Defendant pursuant to this District's internal
procedures for Rushville cases.
5) 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).
6) 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 that Defendant's current work
address, or, if not known, that 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.
7) 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.
8) 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 said 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.
9) 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.
10) 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.
11) 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.
12) Plaintiff shall immediately notify the court of any change in
their mailing addresses and telephone numbers. Failure to notify the
Court of a change in mailing address or phone number will result in
dismissal of this lawsuit, with prejudice.
13) The Clerk is directed 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 18, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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