Canada v. Clayton et al

Filing 6

MERIT REVIEW OPINION entered by Judge Colin Stirling Bruce on 12/20/2013. See written opinion. Copy sent to the Plaintiff by way of e-filing project. Rule 16 Deadline 2/18/2014. (JMW, ilcd)

E-FILED

Friday, 20 December, 2013 04:44:56 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
JON CANADA,
Plaintiff,
v.
JAMES CHRISTOPHER
CLAYTON, et al.,
Defendants.

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13-CV-3093

MERIT REVIEW OPINION
COLIN STIRLING BRUCE, U.S. District Judge:
Plaintiff, proceeding pro se and detained in the Rushville
Treatment and Detention Center, seeks leave to proceed in forma
pauperis. He has paid his partial filing fee.
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 must dismiss cases proceeding in forma
pauperis "at any time" if the action is frivolous, malicious, or fails to
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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.
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
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
Plaintiff is civilly detained in the Rushville Treatment and
Detention Center pursuant to the Illinois Sexually Violent Persons
Commitment Act, 725 ILCS 207/1, et seq. When he arrived at the
Center in March of 2012, Plaintiff initially refused to room with any
other detainees because Plaintiff feared for his safety from
"unknown committed predator[s]." (Complaint, ¶ 17.) Defendants
Parsons and Kulhan allegedly threatened to make life difficult for
Plaintiff if Plaintiff continued to refuse a roommate. After Plaintiff
was punished by the Behavior Committee for refusing a roommate,
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Plaintiff capitulated and accepted a roommate, but Plaintiff was still
disciplined based on his prior refusals.
Defendants Biermann and Clayton allegedly began a campaign
of retaliation against Plaintiff for Plaintiff's refusals to accept a
roommate and for Plaintiff's complaints and attempts to recruit help
for his cause from the outside. The retaliation took the form of,
among other adverse actions, the deprivation of Plaintiff's personal
property and the application of excessively tight and painful hand
restraints, including a "black box," during transports outside the
facility. The restraints were allegedly so tight that Plaintiff
developed severe carpal tunnel syndrome in both hands which
required surgery. Dr. Lochard eventually instructed security not to
use the black box on Plaintiff, but Defendants Heller, Ackman, and
a John Doe Defendant allegedly ignored this order and applied the
black box anyway, causing Plaintiff severe pain and swelling.
ANALYSIS
Plaintiff, as a civil detainee, is constitutionally entitled to
humane conditions of confinement. Sain v. Wood, 512 F.3d 886
(7th Cir. 2008). He is also entitled to reasonable protection from

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known and substantial risks of serious harm. Brown v. Budz, 398
F.3d 904, 909-916 (7th Cir. 2005).
Requiring Plaintiff to room with another detainee does not
violate Plaintiff's constitutional rights. See Bell v. Wolfish, 441 U.S.
520, 540, 542 (1979)(double-celling pretrial detainees in one-man
cell does not alone violate Constitution). The fact that other
detainees are, like Plaintiff, detained pursuant to the Illinois
Sexually Violent Persons Commitment Act does not put Plaintiff at a
known and substantial risk of serious harm. See Brown v. Budz,
398 F.3d 904, 909, 913 (7th Cir.2005)(generalized risk of violence is
not enough to state a failure to protect claim). Plaintiff had no
federal right to refuse to room with another detainee. Therefore, the
punishment for his refusal violates no federal right.
However, Plaintiff does have a qualified First Amendment right
to voice his concerns about the conditions of his confinement, and
he cannot be retaliated against for doing so. Babcock v. White, 102
F.3d 267, 276 (7th Cir. 1996). Plaintiff's allegations that he was
subjected to excessive restraints and other adverse actions in
retaliation for his complaints states a plausible retaliation claim
under the Constitution.
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Plaintiff also states a claim arising from the alleged excessive
restraints. Generally, there is no constitutionally protected liberty
interest in avoiding the "black box" restraints or other restraints
during transport, even for civil detainees. Miller v. Dobier, 634 F.3d
412, 414-15 (7th Cir. 2011). However, restraints cannot be applied
in a manner which intentionally causes the "unnecessary and
wanton infliction of pain." Whitley v. Albers, 475 U.S. 312, 320
(1986)(Eighth Amendment excessive force claim by prisoner).
Additionally, restraints used on a detainee must be "rationally
related to a legitimate non-punitive government purpose" and not
"excessive in relation to the purpose they allegedly serve." May v.
Sheahan, 226 F.3d 876, 884 (7th Cir. 2000). Plaintiff's allegations
allow an inference that his restraints were applied for the purpose
of causing Plaintiff to suffer gratuitously, and that, regardless of
Defendants' motives, the restraints were excessive in relation to
legitimate security concerns.
Plaintiff also states an arguable claim for deliberate
indifference to his serious medical needs arising from the use of
excessive restraints. Plaintiff alleges that security staff intentionally
ignored Dr. Lochard's order that the black box not be used.
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Additionally, liberally construing Plaintiff's allegations, Plaintiff
seems to be alleging that Defendants stalled Plaintiff's access to Dr.
Lochard. Zentmyer v. Kendall County, Ill., 220 F.3d 805, 810 (7th
Cir. 2000)(guards cannot "'intentionally deny[] or delay[] access to
medical care or intentionally interfere[e] with the treatment once
prescribed.'")(quoting Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
Plaintiff also seems to allege that Dr. Lochard was deliberately
indifferent to Plaintiff's serious medical needs by delaying Plaintiff's
diagnosis and treatment. McGee v. Adams, 721 F.3d 474 (7th Cir.
2013)(detainee's constitutional rights are violated by deliberate
indifference to detainee's serious medical needs).
The claims stated by Plaintiff identified above will proceed
against only Defendants Clayton, Biermann, Heller, Ackman, and
Dr. Lochard. None of the other Defendants are implicated in these
claims. Plaintiff alleges that Defendant Jumper is liable because
Jumper was responsible for overseeing the facility's operations.
However, being in charge is not enough to make someone
personally responsible for constitutional violations. Kuhn v.
Goodlow, 678 F.3d 552. 556 (7th Cir. 2012)( "'An individual cannot
be held liable in a § 1983 action unless he caused or participated in
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an alleged constitutional deprivation.'")(quoted cite omitted); Chavez
v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001)(no
respondeat superior liability under § 1983); Soderbeck v. Burnett
County, 752 F.2d 285, 293 (7th Cir. 1985)("Failure to take
corrective action cannot in and of itself violate section 1983.
Otherwise the action of an inferior officer would automatically be
attributed up the line to his highest superior . . . ."). Defendants
Jumper, Kulhan, and Parsons are implicated only in the allegations
about Plaintiff's refusal of a roommate, allegations which do not
state a federal claim. As to Defendant Keller, Plaintiff names Keller
as a Defendant but offers no factual allegations against him.
Plaintiff is advised the "Doe" Defendants cannot be served.
Plaintiff must timely identify the name of any Doe Defendants, or
they will be dismissed without prejudice. This may be
accomplished with discovery requests to Defendants' counsel after
Defendants have been served.
IT IS ORDERED:
1.

Pursuant to a review of the Complaint, the Court finds

that Plaintiff states the following federal constitutional claims: 1)
retaliation for the exercise of Plaintiff's First Amendment rights; 2)
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the application of restraints to Plaintiff which were not "rationally
related to a legitimate non-punitive government purpose" and were
"excessive in relation to the purpose they allegedly serve"; 3) the
application of restraints to Plaintiff for the purpose of causing the
unnecessary and wanton infliction of pain; and, 4) deliberate
indifference to Plaintiff's serious medical needs. This case proceeds
solely on the claims identified in this paragraph. 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 Jumper, Parsons, Kulhan, and Keller are

dismissed, without prejudice, for failure to state a claim against
them. The clerk is directed to terminate Defendants Jumper,
Parsons, Kulhan, and Keller.
3.

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

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denied as premature. Plaintiff need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.
4.

The Court will attempt service on Defendants by sending

each Defendant a waiver of service. Defendants have 60 days from
the date the waiver of service 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 counsel has appeared for
Defendants, the Court will enter a scheduling order setting
deadlines for discovery and dispositive motions.
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 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.
6.

Defendants shall file an answer within 60 days of the day

the waiver of service is sent by the Clerk. A motion to dismiss is
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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.

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.
8.

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.
9.

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.

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10.

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 through the U.S.
Marshal's service on that Defendant and will require that Defendant
to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).
11. The Clerk is directed to attempt service on Defendants
pursuant to the standard procedures.
ENTERED: 12/20/2013
FOR THE COURT:
Colin Stirling Bruce
COLIN STIRLING BRUCE
UNITED STATES DISTRICT JUDGE

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