McDaniels v. Zimmer et al

Filing 8

MERIT REVIEW ORDER entered by Judge James E. Shadid on 11/15/2021. IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO: 1) Dismiss Defendants Advanced Healthcare and John Doe #2 for failure to state a claim upon which relief can be granted pursua nt to by 28 U.S.C. §1915A; 2) Deny Plaintiff's motion for appointment of counsel, 5 ; 3) Attempt service on Defendants pursuant to the standard procedures; 4) 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; and 5) Enter the Court's standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. SEE FULL WRITTEN ORDER.(SAG)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROBERT MCDANIELS,
Plaintiff,

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vs.
JAKE ZIMMER, et. al.,
Defendants

Case No. 21-3154

MERIT REVIEW ORDER
JAMES E. SHADID, U.S. District Judge:
This cause is before the Court for merit review of the Plaintiff’s complaint. The
Court is required by 28 U.S.C. §1915A to “screen” the Plaintiff’s complaint, and through
such process to identify and dismiss any legally insufficient claim, or the entire action if
warranted. A claim is legally insufficient if it “(1) is frivolous, malicious, or fails to state
a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant
who is immune from such relief.” 28 U.S.C. §1915A.
Plaintiff, a pro se prisoner, claims his constitutional rights were violated during
an arrest and subsequent incarceration at the Macoupin County Jail. Plaintiff has
identified 11 Defendants including Deputies Jake Zimmer, Todd Paige, and Mathew
Marburger; Staunton Police Officer Shawn Throne; Sheriff Shawn Kahl; Jail
Administrator Evan Ibberson; Correctional Officer Tommy Ruyle; Advanced Health
Care; Nurse Jane Doe; Dr. John Doe #1; and Advanced Health Care Director John Doe
#2.

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E-FILED

Monday, 15 November, 2021 01:05:11 PM
Clerk, U.S. District Court, ILCD

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Defendants Paige, Zimmer, Marburger, and Throne arrested Plaintiff on July 18,
2019 based on warrants for possession of methamphetamine and driving on a
suspended license. Plaintiff says he did not resist arrest, nor did he threaten the officers.
Nonetheless, the officers choked, punched, kicked, and tased Plaintiff several times in
the head, face, neck, hand, and back. Plaintiff was taken by ambulance to the Staunton
Community Hospital where he was treated for several cuts, a fractured finger, and a
broken nose.
Sheriff Kahl came to the hospital where he was informed of Plaintiff’s injuries
and Plaintiff’s allegation of excessive force. Plaintiff maintains the Sheriff has received a
variety of similar complaints concerning Defendants Marburger, Paige, and Zimmer,
but Defendant Kahl took no action despite the pattern of “excessive force against
arrestees.” (Comp., p. 3).
Plaintiff has adequately alleged Defendants Zimmer, Paige, Marburger, and
Throne used excessive force or failed to intervene to stop the use of excessive force on
July 18, 2019. Since Plaintiff alleges the incident occurred during his arrest, his
excessive force claim is pursuant to the Fourth Amendment. See Graham v. Connor, 490
U.S. 386, 394–95 (1989). Plaintiff further alleges the four Defendants committed the state
law tort of assault and battery.
However, Plaintiff has failed to articulate a claim against Defendant Kahl based
on any direct involvement in the alleged assault. To hold an individual liable under
Section 1983, Plaintiff must “show that the defendants were personally responsible for
the deprivation of their rights.” Wilson v. Warren Cty., Illinois, 2016 WL 3878215, at *3
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(7th Cir. 2016). “A defendant is personally responsible ‘if the conduct causing the
constitutional deprivation occurs at his direction or with his knowledge and consent.’”
Id. quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). A Defendant is not
liable simply because he is a supervisor. See Sanville v. McCaughtry, 266 F.3d 724, 740
(7th Cir. 2001). Plaintiff does not allege Defendant Kahl was involved in his arrest.
Therefore, Defendant Kahl cannot be sued in his individual capacity for the use of
excessive force. Plaintiff has also failed to state a state law claim of assault and battery
against the Defendant.
However, it is possible Plaintiff intended to an allege an official capacity claim
against the Sheriff which is in effect a claim against the municipality. See Minix v.
Canarecci, 597 F.3d 824, 830 (7th Cir. 2010). “To establish municipal liability under § 1983
... [P]laintiff must present sufficient evidence to show that the constitutional violation
resulted from a municipal policy, custom, or practice.” Waters v. City of Chicago, 580 F.3d
575, 580 (7th Cir. 2009), citing Monell v. New York City Dep't Soc. Servs., 436 U.S. 658, 694
(1978). “To establish an official policy or custom, a plaintiff must show that his
constitutional injury was caused by (1) the enforcement of an express policy of the
[municipality], (2) a widespread practice that is so permanent and well settled as to
constitute a custom or usage with the force of law, or (3) a person with final
policymaking authority.” Wragg v. Vill. of Thornton, 604 F.3d 464, 467–68 (7th Cir.
2007)(internal citation omitted). Plaintiff has adequately alleged the assault was the
result of a general pattern of repeated behavior. Therefore, he may proceed with his
official capacity claim against Defendant Kahl.
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Plaintiff next claims the emergency room doctor provided Defendant Sheriff
Kahl with instructions for needed medications and follow-up care for Plaintiff’s broken
nose, fractured hand, and lacerations. When Plaintiff was then transferred to the jail,
he informed Defendant Officer Ruyle he was in severe pain and needed pain
medication and other prescribed treatment. The Defendant told Plaintiff he would have
to wait until the next day.
Two days later, Plaintiff submitted another request for medical care noting he
had not received pain medication or antibiotics for over 48 hours. Nonetheless, Plaintiff
did not see any medical staff until he met with Nurse Jane Doe on July 22, 2019.
Plaintiff claims Defendants Jail Administrator Ibberson, Nurse Jane Doe, Dr. John Doe,
John Doe #2, and Advanced Healthcare were aware of Plaintiff’s injuries, but still
delayed medical care.
Finally, on July 24, 2019, Plaintiff was transported to Carlinville Area Hospital
for his hand injury. The examining doctor told the transporting officer Plaintiff needed
to be transferred to Memorial Medical Center in Springfield, Illinois for emergency
surgery. This information was provided to Jail Administrator Ibberson, but the surgery
was delayed until July 26, 2019.
Ultimately, the surgeon recommended amputation of Plaintiff’s finger due to the
delay in providing care. Plaintiff refused and asked the surgeon to attempt to repair the
injury. Plaintiff “suffered a PIP joint fusion, specimens of the fourth finger were
removed with a bone saw, two pins were inserted, and Plaintiff has permanent loss of
function to the fourth finger of the dominant right hand.” (Comp., p. 4).
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Plaintiff has adequately alleged Defendants Kahl, Ibberson, Ruyle, and Nurse
Jane Doe violated his constitutional rights when they either denied or delayed medical
care for his serious medical condition. Since it appears Plaintiff was a pretrial detainee,
his claim is pursuant to the Fourteenth Amendment.
While Plaintiff does not clearly state he met with the Jail Doctor, Defendant John
Doe, the doctor would be responsible for approving treatment. For the purposes of
notice pleading, Plaintiff may proceed with his claim against the doctor.
However, Plaintiff has not articulated any direct involvement by Defendant
Advanced Healthcare Director John Doe #2. In addition, an inmate alleging a
corporate entity such as Advanced Healthcare violated his constitutional rights, “must
show that the corporation supports a ‘policy that sanctions the maintenance of prison
conditions that infringe upon the constitutional rights of the prisoners.’” Brown v Ghosh,
2010 WL 3893939 at 8 (N.D. Ill. Sept. 28, 2010) quoting Woodward v Corr. Med. Servs. of Ill.,
Inc., 368 F.3d 917, 927 (7th Cir. 2004). Plaintiff has failed to articulate a claim against
Advanced Healthcare.
Finally, Plaintiff claims the Defendants failure to provide medical care violates
the state law tort of negligence. It appears Plaintiff is alleging the state law tort of
medical malpractice. Plaintiff may proceed with this claim at this stage of the
proceedings, but he has only clearly articulated a potential claim against Nurse Jane
Doe and Dr. John Doe.
Plaintiff is admonished he MUST comply with the requirements of the Illinois
Healing Arts Malpractice statute by the summary judgment deadline if he wishes to
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pursue this claim. See 735 ILCS 5/2-622 et. seq; see also Young v. United States, 942 F.3d
349 (7th Cir. Nov. 4, 2019) (allowing pro se Plaintiff until summary judgment stage to
comply with affidavit requirement). This statute requires Plaintiff to provide the Court
with an affidavit and a “certificate of merit,” a written report by a health professional
attesting that there is a “reasonable and meritorious cause for the filing.” 735 ILCS 5/2622(a); see also Hahn v. Walsh, 762 F.3d 617, 628-33 (7th Cir. 2014) (Rule 2-622 applies to
state law claim filed in federal court). If Plaintiff fails to meet this requirement, his
medical malpractice claim will be dismissed.
Finally, Plaintiff has filed a Motion for Appointment of Counsel. [5]. Plaintiff has
no constitutional right to the appointment of counsel. In addition, the Court cannot
require an attorney to accept pro bono appointment in a civil case. The most the Court
can do is ask for volunteer counsel. See Jackson v. County of McLean, 953 F.2d 1070, 1071
(7th Cir. 1992).
In considering Plaintiff’s motion, the Court must ask two questions: “(1) has the
indigent plaintiff made a reasonable attempt to obtain counsel or been effectively
precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff
appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007),
citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993). Plaintiff has demonstrated at least
some attempt to find counsel on his own.
Plaintiff says he needs an attorney to assist him in filing documents due to his
finger injury. Plaintiff says another inmate typed his complaint, but that inmate may
not be available in the future.
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Nonetheless, Plaintiff’s complaint very clearly set for the basis for his claims. In
fact, it was for more on point than many complaints filed by pro se Plaintiffs. In
addition, the claims of excessive force and failure to intervene are not complex. As for
Plaintiff’s medical claim, his claim spans a very brief period of time and he will be able
to obtain medical records verifying his injuries. Plaintiff should also be able to testify
personally to the pain he experienced, his attempts to obtain help, and the responses he
received, which can be used to show evidence of deliberate indifference. See Ledford v.
Sullivan, 105 F.3d 354, 358 (7th Cir. 1997)(expert testimony not necessarily required to
establish deliberate indifference).
The Court will also enter a scheduling order in this case after Defendants have
been served and filed an answer which will provide information to assist a pro se
litigant, and requires the exchange of initial, relevant discovery. Plaintiff appears
competent to litigate his claims.
Plaintiff is reminded he may request extensions of time to the extent he needs
additional time to file any document. If Plaintiff is truly disabled, he may also seek help
at his institution. The motion is denied. [5].
IT IS THEREFORE ORDERED:
1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the
Court finds the Plaintiff alleges:
a) Defendants Zimmer, Paige, Marburger, and Throne used excessive force or
failed to intervene to stop the use of excessive force on July 18, 2019;
b) Defendants Zimmer, Paige, Marburger, and Throne committed the state law
tort of assault and battery on July 18, 2019;

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c) an official capacity claim against Defendant Kahl based on a pattern of
excessive force against arrestees;
d) Defendants Kahl, Ibberson, Ruyle, Nurse Jane Doe, and Dr. John Doe violated
Plaintiff’s constitutional rights when they each either denied or delayed medical
care for Plaintiff’s serious medical condition;
e) A state law medical malpractice claim against Defendant Nurse Jane Doe and
Dr. John Doe. Plaintiff may only proceed with this final claim if he complies with
the requirements of the Illinois Healing Arts Malpractice statute by the summary
judgment deadline. See 735 ILCS 5/2-622.
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) 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.
3) 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.
4) 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
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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.
5) 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 Order. 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.
6) 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.
7) 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.
8) 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
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change in mailing address or phone number will result in dismissal of this lawsuit,
with prejudice.
9) Within 10 days of receiving from Defendants’ counsel an authorization to
release medical records, Plaintiff is directed to sign and return the authorization
to Defendants’ Counsel.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) Dismiss Defendants Advanced Healthcare and John Doe #2 for failure to
state a claim upon which relief can be granted pursuant to by 28 U.S.C. §1915A;
2) Deny Plaintiff’s motion for appointment of counsel, [5]; 3) Attempt service
on Defendants pursuant to the standard procedures; 4) 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; and 5) Enter the Court's
standard qualified protective order pursuant to the Health Insurance
Portability and Accountability Act.
ENTERED this 15th day of November, 2021.

s/ James E. Shadid
____________________________________________
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE

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