Myers v. Williams et al
Filing
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MERIT REVIEW OPINION: This case proceeds solely on the claims identified in paragraph one of this Opinion. Defendant Williams is dismissed. Plaintiff's motion for counsel (d/e 2 ) is denied with leave to renew after he demonstrates reasonabl e efforts to find an attorney on his own. Plaintiff's motion for subpoenas is denied as premature (d/e 3 ). IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO: 1) ATTEMPT SERVICE ON DEFENDANTS PURSUANT TO THE STANDARD PROCEDURES; AND, 2 ) SET AN INTERNAL COURT DEADLINE 60 DAYS (Rule 16 Deadline 12/23/2013) FROM THE ENTRY OF THIS ORDER FOR THE COURT TO CHECK ON THE STATUS OF SERVICE AND ENTER SCHEDULING DEADLINES. See Written Order. Entered by Judge Sue E. Myerscough on 10/22/2013. (ME, ilcd)
E-FILED
Tuesday, 22 October, 2013 04:32:53 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MARCUS MYERS,
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Plaintiff,
v.
TERRY WILLIAMS, et al.,
Defendants.
13-CV-3285
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and incarcerated in Menard
Correctional Center, pursues claims arising from alleged excessive
force during Plaintiff’s incarceration in Western Illinois Correctional
Center in June 2013. The case is before the Court for a merit
review pursuant to 28 U.S.C. § 1915A.
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 “frivolous, malicious, or fails to state a claim upon which
relief may be granted.” To state a claim, the allegations must set
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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)).
ANALYSIS
On or about June 30, 2013, Plaintiff was in the chow line at
Western Illinois Correctional Center, talking about a movie with
other inmates. Plaintiff remarked, “I would like to have sex with
her.” Correctional Officer Harrison overheard the remark and
allegedly thought Plaintiff was talking about Officer Harrison, but
Plaintiff was actually talking about an actress in the movie, not
Officer Harrison.
Later that day, Officer Harrison, Officer Wade, and an
unknown Sergeant came to Plaintiff’s cell and took Plaintiff to
segregation, allegedly telling Plaintiff, "This is what we do to
niggers." (Compl. p. 8.) Officers Smith and Grame joined the scene
and allegedly proceeded to slam Plaintiff’s face in the wall, knee him
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in the ribs, and bend Plaintiff’s hands back so hard that Plaintiff
lost sensation in his hands for 20 minutes, all the while hurling
racial epithets at Plaintiff.
“The Eighth Amendment bars prison officials from using
excessive force against inmates. Excessive force in this context
means the ‘unnecessary and wanton infliction of pain,’ which is
force applied ‘maliciously and sadistically for the very purpose of
causing harm’ rather than force applied in a ‘good faith effort to
maintain or restore discipline.’” Sanchez v. City of Chicago, 700
F.3d 919, 927 n. 3 (7th Cir. 2012) (quoted and other cite omitted).
Relevant factors in this determination include the need for the force
and the amount of force used in relation to that need. Rice el rel.
Rice v. Correctional Medical Services, 675 F.3d 650, 667-68 (7th
Cir. 2012).
The allegations allow a plausible inference that Defendants
Harrison, Wade, Smith, Grame, and the unknown sergeant either
used excessive force on Plaintiff, caused excessive force to be used
on Plaintiff, or failed to intervene to prevent excessive force being
used on Plaintiff.
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Also, a plausible inference arises that Defendants' actions
were motivated by racial animus, which states an arguable equal
protection claim. Racially derogatory remarks alone do not violate
the Constitution, but treating a prisoner adversely because of his
race does. See Whren v. United States, 517 U.S. 806, 813
(1996)(“[T]he Constitution prohibits selective enforcement of the law
based on considerations such as race . . . .”).
However, Plaintiff states no plausible claim for relief against
Warden Williams. Warden Williams cannot be held liable for the
constitutional violations of his employees solely because Williams is
in charge. Plaintiff’s allegations allow no inference that Williams
was involved in the excessive force in any way. 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 an
alleged constitutional deprivation.'")(quoted cite omitted); Matthews
v. City of East St. Louis, 675 F.3d 703, 708 (7th Cir. 2012)(“To show
personal involvement, the supervisor must ‘know about the conduct
and facilitate it, approve it, condone it, or turn a blind eye for fear of
what they might see.’”)(quoted cite omitted); Chavez v. Illinois State
Police, 251 F.3d 612, 651 (7th Cir. 2001)(no respondeat superior
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liability under § 1983). Warden Williams will therefore be
dismissed.
Plaintiff is advised that the Court cannot serve the “unknown
sergeant” until Plaintiff identifies the name of the sergeant. If
Plaintiff is unable to discover the name on his own and the name is
not provided by Defense counsel, Plaintiff should send Defendants’
counsel a discovery request seeking the name. Failure to timely
identify the unknown sergeant after Defendants have been served
will result in dismissal of the unknown sergeant.
IT IS THEREFORE ORDERED:
1)
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states the following
constitutional claims: 1) Defendants Harrison, Wade, Smith,
Grame, and an unknown sergeant either used excessive force on
Plaintiff, caused excessive force to be used on Plaintiff, or failed to
intervene to prevent excessive force being used on Plaintiff in
violation of Plaintiff's Eighth Amendment rights; and 2) the actions
of Defendants Harrison, Wade, Smith, Grame, and an unknown
sergeant were taken because of Plaintiff's race in violation of
Plaintiff's equal protection rights. This case proceeds solely on the
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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)
Defendant Williams is dismissed.
3)
On a separate matter, Plaintiff’s motion for counsel (d/e
2) is denied with leave to renew after he demonstrates reasonable
efforts to find an attorney on his own. Pruitt v. Mote, 503 F.3d 647,
654-55 (7th Cir. 2007). Typically, a plaintiff makes this showing by
writing to several different law firms and attaching the responses to
the motion for appointment of counsel. When Plaintiff filed his
motion, the prison was on lock down and Plaintiff was unable to
obtain attorney addresses. If Plaintiff is still unable to obtain
attorney addresses, he may renew his motion for counsel stating so.
If Plaintiff renews his motion for counsel, Plaintiff should set forth
any jobs he has had inside or outside the prison and his litigation
experience in state and federal court.
4)
Plaintiff's motion for subpoenas is denied as premature
(d/e 3). When discovery deadlines are set, the Court will direct the
production of some relevant documents. If Plaintiff seeks additional
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documents or information from Defendants he may mail
interrogatories and document requests to Defendants' counsel.
Subpoenas are necessary only to compel information from a
nonparty.
5)
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
denied as premature. Plaintiff need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.
6)
The Court will attempt service on Defendants by mailing
each Defendant a waiver of service. Defendants have 60 days from
service 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
Defendants have been served, the Court will enter an order setting
discovery and dispositive motion deadlines.
7)
With respect to a Defendant who no longer works at the
address provided by Plaintiff, the entity for whom that Defendant
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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.
8)
Defendants shall file an answer within 60 days of the
date the waiver is sent by the clerk. 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. In general, an
answer sets forth Defendants' positions. The Court does not rule
on the merits of those positions unless and until a motion is filed by
Defendants. Therefore, no response to the answer is necessary or
will be considered.
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
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Defendants pursuant to Local Rule 5.3. If electronic service on
Defendants is not available, Plaintiff will be notified and instructed
accordingly.
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 deposition.
11)
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.
IT IS FURTHER ORDERED THAT THE CLERK IS
DIRECTED TO: 1) ATTEMPT SERVICE ON DEFENDANTS
PURSUANT TO THE STANDARD PROCEDURES; AND, 2) 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.
LASTLY, IT IS ORDERED THAT 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
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WILL TAKE APPROPRIATE STEPS TO EFFECT FORMAL
SERVICE THROUGH THE U.S. MARHSAL'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).
ENTERED: 10/22/2013
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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