Ebmeyer v. Yurkovich et al
Filing
5
MERIT REVIEW OPINION: Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states the following claim: Eighth Amendment claims for the humiliating strip search and excessive force. Clerk is directed to dismiss Defendants Yurkovich, Baldwin, Wexford Health Sources, and Unknown Members of Orange Crush. (SEE WRITTEN OPINION) (Rule 16 Deadline 8/1/2016) Entered by Judge Sue E. Myerscough on 6/1/2016. (GL, ilcd)
E-FILED
Wednesday, 01 June, 2016 11:28:13 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
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Plaintiff,
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v.
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JOSEPH YURKOVICH, et al.
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Defendants. )
KELLY D. EBMEYER,
16-4056
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and presently incarcerated at
Shawnee Correctional Center, brings the present lawsuit pursuant
to 42 U.S.C. § 1983 alleging violations of the Eighth Amendment’s
proscription against cruel and unusual punishment related to
events that allegedly occurred while he was incarcerated at Hill
Correctional Center. The matter comes before this Court for merit
review under 28 U.S.C. §1915A. In reviewing the complaint, the
Court takes all 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
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plausible on its face.” Alexander v. U.S., 721 F.3d 418, 422 (7th Cir.
2013) (internal citation omitted).
ALLEGATIONS
Plaintiff alleges that while he was incarcerated at Hill
Correctional Center (“Hill”), members of the Orange Crush tactical
team ordered him and other inmates to subject to a group strip
search. During this search, Plaintiff alleges that he and other
inmates were ordered to touch their genitals and then open their
mouths with the same hand. Plaintiff also alleges that Defendant
Ohlberg, a correctional sergeant, squeezed Plaintiff’s testicles “with
extreme force, resulting in instant pain and nausea, and the
inability to walk correctly.”
Plaintiff alleges that prison officials then applied handcuffs in
an excessively tight manner. The inmates, while still naked, were
forced to walk in a line in such a close proximity to each other that
an inmate’s genitals were in contact with the buttocks of the inmate
directly in front of him. According to Plaintiff, prison officials
referred to this practice as “nuts-to-butts.” Plaintiff alleges he was
marched into the gymnasium where he was forced to stand facing a
wall while still handcuffed for approximately three (3) hours.
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During the march from the cells to the gymnasium, Plaintiff alleges
that prison officials laughed at and taunted the inmates.
Plaintiff alleges he suffered physical and psychological injury,
including headaches, dizziness, blurred vision, and extreme wrist
pain. After the strip search, Plaintiff alleges his requests for
medical treatment were denied. Plaintiff alleges he eventually saw a
nurse who provided ibuprofen. Following his transfer to a different
prison, Plaintiff alleges that x-rays revealed “nerve compression in
[his] wrists from the overly tight handcuffs.”
Plaintiff alleges further that his cell was searched and several
items of personal property were confiscated as a result. Plaintiff
alleges that prison officials failed to follow the prison rules
regarding the issuance of “shakedown slips” to document what
property was confiscated.
ANALYSIS
Strip Search Claim
“A prisoner states a claim under the Eighth Amendment when
he plausibly alleges that the strip search in question was motivated
by a desire to harass or humiliate rather than by a legitimate
justification, such as the need for order and security in prisons.”
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King v. McCarty, 781 F.3d 889, 897 (7th Cir. 2015). Plaintiff’s
allegations, as a whole, suggest that prison officials conducted
these strip searches for purposes of humiliation. Determination of
whether a legitimate penological reason existed for the searches and
the manner in which they were allegedly conducted must await a
more developed record. Therefore, the Court finds that Plaintiff
states an Eighth Amendment claim related to the strip searches.
Excessive Force Claim
In Eighth Amendment claims for excessive force, the relevant
inquiry is “whether force was applied in a good faith effort to
maintain or restore discipline or maliciously and sadistically for the
very purpose of causing harm.” Hudson v. McMillian, 503 U.S. 1, 6
(1992) (citation omitted); see DeWalt v. Carter, 224 F.3d 607 (7th
Cir. 2000) (applying Hudson). In making this determination, the
court may examine several factors, “including the need for an
application of force, the relationship between that need and the
force applied, the threat reasonably perceived by the responsible
officers, the efforts made to temper the severity of the force
employed, and the extent of the injury suffered by the prisoner.”
Dewalt, 224 F.3d at 619. Significant injury is not required, but “a
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claim ordinarily cannot be predicated on a de minimis use of
physical force.” Id. at 620 (citing Hudson, 503 U.S. at 9-10).
“Thus, not every push or shove by a prison guard violates a
prisoner’s constitutional rights.” Id.
Plaintiff alleges that Defendant Ohlberg squeezed Plaintiff’s
testicles with enough force to cause extreme pain, nausea, and the
inability to walk normally. On these allegations, the Court finds
that Plaintiff states an Eighth Amendment claim for excessive force.
Medical Claims
Plaintiff does not identify any prison officials that personally
denied his requests for medical treatment. Instead, Plaintiff names
only Wexford Health Sources, Inc., the corporation contracted to
provide medical services at the prison. Before a corporation may be
held liable under § 1983, Plaintiff must establish an underlying
constitutional violation. See Pyles v. Fahim, 771 F.3d 403, 412 (7th
Cir. 2014) (corporation may not be held liable where there is no
underlying constitutional violation). Moreover, there is no
indication that the prison officials who allegedly denied Plaintiff’s
requests were employees of Wexford.
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To state a claim, Plaintiff must allege that specific prison
officials acted with deliberate indifference to a serious medical need.
Estelle v. Gamble, 429 U.S. 97, 105 (1976). At this time, Plaintiff
has not done so. Accordingly, Plaintiff’s claims for inadequate
medical care will be dismissed without prejudice to amending his
complaint.
Personal Property and Shakedown Slips
Plaintiff alleges that during the searches, prison officials
searched his cell, confiscated personal property, and did not issue a
written inventory of the items seized (“shakedown slips”). In his
Complaint, Plaintiff references several grievances that describe the
property seized as a towel, bowls, bottles, and a package of Taster’s
Choice coffee. (Doc. 1 at 20-25). Presumably, Plaintiff has not
received these items back.
Plaintiff’s allegations suggest that the deprivations he suffered
were a result of intentional, but unauthorized, acts of prison
employees. In other words, the confiscation of Plaintiff’s noncontraband property was not mandated by an established prison
policy—prison officials acted on their own volition. In this scenario,
the confiscation or destruction of personal property does not violate
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due process where state law provides a meaningful post-deprivation
remedy. Hudson v. Palmer, 468 U.S. 517, 530 (1984). Plaintiff has
an adequate remedy available to him in the Illinois Court of Claims.
See Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir. 1993).
Plaintiff also alleges that prison officials failed to comply with
the prison’s administrative rules regarding the issuance of
shakedown slips. Standing alone, the failure to comply with a state
administrative rule does not state a constitutional claim. See
Guarjardo-Palma v. Martinson, 622 F.3d 801, 806 (7th Cir. 2010)
(“[A] violation of state law is not a ground for a federal civil rights
suit.”); Allison v. Snyder, 332 F.3d 1076, 1079 (7th Cir. 2003) (The
federal constitution does not “permit a federal court to enforce state
laws directly.”).
Therefore, Plaintiff’s claims related to the search of his cell and
the non-issuance of shakedown slips will be dismissed without
prejudice to filing an amended complaint.
Proper Defendants
“Section 1983 creates a cause of action based on personal
liability and predicated upon fault; thus, liability does not attach
unless the individual defendant caused or participated in a
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constitutional deprivation.” Vance v. Peters, 97 F.3d 987, 991 (7th
Cir. 1996) (citations omitted). A plaintiff must plead that each
official, “though the official’s own individual actions, has violated
the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A
government official may not be held liable under § 1983 on a theory
of respondeat superior, that is, for the unconstitutional acts of his
or her subordinates. Id. To be held liable, a government supervisor
“must know about the conduct and facilitate it, approve it, condone
it, or turn a blind eye….” Vance, 97 F.3d at 993 (quoting Gentry v.
Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)).
With respect to Defendant Yurkovich, the Illinois Department
of Corrections (“IDOC”) Chief of Operations, and Defendant
Baldwin, the current IDOC Director, Plaintiff has not sufficiently
alleged that these individuals personally participated or condoned
the strip search in question. Therefore, these defendants will be
dismissed.
Plaintiff does not make any specific allegations against
Defendant Akpore, the Warden at Hill Correctional Center.
Defendant Akpore, however, will remain a defendant as Plaintiff has
named several unidentified members of the Orange Crush tactical
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team as defendants. Defendant Akpore shall be dismissed upon
proper motion once the identities of the members of the Orange
Crush who conducted the search are ascertained. See Donald v.
Cook Cnty. Sheriff’s Dep’t, 95 F.3d 548, 555-56 (7th Cir. 1996)
(Court may name high level administrators as defendants for
purposes of identifying Doe defendants).
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 claim: Eighth Amendment claims for the humiliating
strip search and excessive force. 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)
Clerk is directed to dismiss Defendants Yurkovich,
Baldwin, Wexford Health Sources, and Unknown Members of
Orange Crush.
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 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
mailing each Defendant a waiver of service. Defendants have
60 days from the date the waiver is sent to file an Answer. If
Defendants have not filed Answers or appeared through counsel
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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.
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
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.
7)
This District uses electronic filing, which means that,
after Defense counsel has filed an appearance, Defense counsel
will automatically receive electronic notice of any motion or
other paper filed by Plaintiff with the Clerk. Plaintiff does not
need to mail to Defense counsel copies of motions and other
papers that Plaintiff has filed with the Clerk. However, this
does not apply to discovery requests and responses. Discovery
requests and responses are not filed with the Clerk. Plaintiff
must mail his discovery requests and responses directly to
Defendants' counsel. Discovery requests or responses sent to
the Clerk will be returned unfiled, unless they are attached to
and the subject of a motion to compel. Discovery does not
begin until Defense counsel has filed an appearance and the
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Court has entered a scheduling order, which will explain the
discovery process in more detail.
8)
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.
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.
10) If a Defendants 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) 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.
12) The clerk is directed to enter the standard order
granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.
ENTERED:
June 1, 2016
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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