Donelson v. Watson et al

Filing 8

OPINION entered by Judge Sue E. Myerscough on 4/18/2012. The merit review scheduled for April 23, 2012 is cancelled. Sua sponte, the Court adds Correctional Officer Bradbury as a Defendant because Plaintiff may be attempting to sue Bradbury instead of Burberry. This cause is set for further scheduling procedures under Fed. R. Civ. P. 16 on June 18, 2012 at 1:30 p.m. (or as soon as the Court can reach the case) before Judge Sue E. Myerscough. (MAS, ilcd)

E-FILED

Wednesday, 18 April, 2012 12:27:39 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
CHARLES DONELSON,

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Plaintiff,
v.
JIMMY WATSON, et al.,
Defendants.

12-CV-3086

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and currently incarcerated in Pontiac
Correctional Center, pursues claims arising from an incident which
occurred at Western Illinois Correctional Center on July 11, 2011 and
events subsequent thereto. 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

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process, to identify cognizable claims, dismissing any claim that is
“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
Complaint and its attachments are clear enough on their 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

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level.’” Id., quoting Bell Atlantic, 550 U.S. at 555. “A claim has facial
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
Defendant Watson, a correctional officer at Western Illinois
Correctional Center, allegedly repeatedly retaliated against Plaintiff for
the grievances he had filed against Watson and also for a lawsuit Plaintiff
was pursuing against Cindy Lynch. This retaliation included the denial
of meals, extra searches, squeezing Plaintiff’s testicles, and refusing to
allow Plaintiff to make phone calls. The retaliation came to a head on
July 11, 2011 when Watson denied ice for the inmates on Plaintiff’s

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wing. Plaintiff tried to garner the attention of other officers to intervene
and tried to phone his family members. These actions allegedly sparked
further retaliation. Specifically, Defendants Watson, Paul, and Roberts
cornered Plaintiff in the wing. Plaintiff tried to run and was met with
blows from Watson, while Paul and Roberts either looked on or
participated in Watson’s assault of Plaintiff. Watson twisted Plaintiff’s
left foot until it “popped” and kicked and punched Plaintiff about his
body and face. Defendant Lindsey was also allegedly involved in this
excessive force.
After this incident, Plaintiff was taken to see Defendant Nurse
Steele, who proclaimed him fit for transfer without offering him any
medical care or documenting his injuries. He was limping and had
abrasions on his arm and face. Defendants Hamilton, Burberry,1 and
Pool allegedly subjected Plaintiff to excessive force when they escorted
him to segregation. This excessive force included kneeing Plaintiff in the

Plaintiff’s spelling of this name is inconsistent. Based on this Court’s
experience in other prisoner civil rights cases, the Court surmises that Plaintiff may be
referring to an officer “Bradbury.”
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stomach and groin, “head butting” him, and running him into doors. At
some point the tactical response team came in, which included
Defendants Adams and Wildrop. Plaintiff was strip searched and the
black box restraints were tightly applied. Plaintiff was then slammed to
the wall and held in position. Adams and Wildrop then secured Plaintiff
in the van for transport to Pontiac Correctional Center. Wildrop and
Adams had guns during the transport, and they threatened to shoot and
kill Plaintiff if he caused any trouble. Adams pointed his barrel at the
side of Plaintiff’s head during the trip.
Officers at Western allegedly decided to cover up the excessive force
by falsely claiming that Plaintiff had stabbed or attempted to stab
Watson with a knife. Plaintiff lost one year of good conduct credits,
along with other punishments, as the result of an allegedly false
disciplinary ticket charging him with violent assault, among other
charges.
When Plaintiff arrived at Pontiac Correctional Center, Defendant
Nurse Davis allegedly also refused to give Plaintiff any medical treatment

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other than Tylenol, though she did put him in for sick call.
ANALYSIS
The Eighth Amendment prohibits cruel and unusual punishment,
which includes the use of excessive force. Excessive force in the prison
setting is force “‘applied maliciously and sadistically for the very purpose
of causing harm.’” Hudson v. McMillian, 503 U.S. 1, 5 (1992). Force
applied in a “‘good faith effort to maintain or restore discipline’” does not
violate the Eighth Amendment. Id.
A plausible inference arises that Plaintiff was subjected to excessive
force by Defendants Watson, Roberts, Pool, Lindsey, Hamilton,
Burberry, and Pool. Determining what force was used and whether the
force was applied in a “good faith effort to maintain or restore discipline”
requires a more developed record. An excessive force claim or other
Eighth Amendment claim is also plausibly stated against Defendants
Adams and Wildrop, who transported Plaintiff in the van, though
discerning that claim is more difficult. Whether Adams and Wildrop
actually applied any force to Plaintiff is not clear. Whether their threats

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were enough to amount to an Eighth Amendment violation is also not
clear.
Plaintiff also states a claim for retaliation for filing grievances and
pursuing his lawsuit against Lynch. “The federal courts have long
recognized a prisoner's right to seek administrative or judicial remedy of
conditions of confinement, . . . as well as the right to be free from
retaliation for exercising this right.” Babcock v. White, 102 F.3d 267,
276 (7th Cir. 1996)(citations omitted). At this point the retaliation
claim will remain in against all the defendants involved in the excessive
force. A retaliation claim also arises against Defendant Goins, who
allegedly intentionally failed to process Plaintiff’s grievances against
Watson, presumably in retaliation for Plaintiff’s complaints against
Watson. A retaliation claim also arises against Defendant Jennings, who
allegedly labeled Plaintiff as a gang member in retaliation for Plaintiff’s
lawsuit against Lynch and his prior grievances.
Plaintiff’s excessive force and retaliation claims may be barred in
part or full if those claims necessarily call into question the validity of his

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loss of good time on the disciplinary ticket. In Edwards v. Balisok, 520
U.S. 641, 648 (1997), the Supreme Court held that claims which
"necessarily imply the invalidity of the deprivation of . . . [an inmate's]
good-time credits" are not cognizable under 42 U.S.C. § 1983 until the
prison disciplinary decision has otherwise been invalidated, for example
by expungement, a state court order, or a writ of habeas corpus. See also
Heck v. Humphrey, 512 U.S. 477, 487 (1994). However, that
determination would be premature.
The Court cannot rule out an Eighth Amendment claim against
Nurses Steele and Davis based on their alleged failure to treat Plaintiff’s
injuries following the excessive force. Deliberate indifference to a serious
medical need violates a prisoner's right under the Eighth Amendment to
be free from cruel and unusual punishment. Hayes v. Snyder, 546 F.3d
516, 522 (7th Cir. 2008). The medical need must be objectively serious,
meaning “‘one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor's attention.’” Id., quoting Greeno v.

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Daley, 414 F.3d 645, 653 (7th Cir. 2005). An objectively serious need
also presents itself if “‘failure to treat [the condition] could result in
further significant injury or unnecessary and wanton infliction of pain.’”
Reed v. McBride, 178 F.3d 849, 852 (7th Cir. 1999)(quoted cite
omitted). Deliberate indifference does not encompass negligence or even
gross negligence. McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.
2010). Deliberate indifference requires personal knowledge of an
inmate’s serious medical need and an intentional or reckless disregard of
that need. Id.; Hayes, 546 F.3d at 524.
A plausible inference of a serious medical need arises from
Plaintiff’s description of his swollen ankle and his abrasions, though
further development of the record may show otherwise. Additionally,
deliberate indifference might be inferred from the nurses’ alleged refusal
to examine Plaintiff’s injuries and to provide some treatment in addition
to the Tylenol he received, for example, ice and a wrap for his swollen
ankle.
The Court cannot discern any claims against the remaining

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Defendants Johnson, Jackson, Randolph, Jones, Anderson, or Young.
Defendant Johnson was the grievance officer at Pontiac who allegedly
denied Plaintiff’s grievances against Watson on the grounds of
untimeliness. Plaintiff has no constitutional right to a grievance
procedure, and therefore has no constitutional right to have an existing
grievance procedure properly administered. See Antonelli v. Sheahan, 81
F.3d 1422, 1430 (7th Cir. 1996). In any event, ruling against an inmate
on a grievance does not alone violate the Constitution. 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.”). Unlike the allegations against Defendant Goins, no
plausible inference arises that Johnson was acting out of retaliation for
any of Plaintiff’s grievances and lawsuits. Johnson was working at
Pontiac, and the grievances and lawsuits had been filed during Plaintiff’s
incarceration in Western. For the same reasons no claim arises against
Defendant Anderson, who denied Plaintiff’s appeals.

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Defendants Jackson, Jones, Randolph, and Young held supervisory
positions. Jackson was the Warden; Jones was the Chief of Operations in
charge of the tactical team; Randolph was the Deputy Director; and,
Young was the Assistant Warden of Programs. They cannot be held
liable for their subordinate’s constitutional violations simply because they
were in charge. See Chavez v. Illinois State Police, 251 F.3d 612, 651
(7th Cir. 2001)(no respondeat superior liability under § 1983). No
plausible inference arises that these defendants participated in, directed,
condoned, or turned a blind eye to the alleged constitutional violations.
Johnson v. Snyder, 444 F.3d 579, 583-84 (7th Cir.2006)(liability under
§ 1983 requires personal involvement).
IT IS THEREFORE ORDERED:
1) The merit review scheduled for April 23, 2012 is cancelled. The
clerk is directed to vacate the writ and to notify Plaintiff’s prison of the
cancellation.
2) Sua sponte, the Court adds Correctional Officer Bradbury as a
Defendant because Plaintiff may be attempting to sue Bradbury instead

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of Burberry.
2) Pursuant to its merit review of the Complaint under 28 U.S.C. §
1915A, the Court finds that Plaintiff states the following federal
constitutional claims: 1) Eighth Amendment claim for excessive force
against Defendants Watson, Roberts, Pool, Lindsey, Hamilton, Burberry,
Bradbury, Pool, Wildrop, and Adams. 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.
3) 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.
4) 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).
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 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.
6) 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.
7) 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.
8) 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.
9) This cause is set for further scheduling procedures under Fed. R.
Civ. P. 16 on June 18, 2012 at 1:30 p.m. (or as soon as the Court can
reach the case) before U. S. District Judge Sue E. Myerscough. Plaintiff
shall appear by video conference. Defense counsel shall appear in person.
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.

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10) Counsel for Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the depositions.
11) 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.
12) 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:

April 18, 2012

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

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