Verser v. Johnson et al
Filing
173
MEMORANDUM Opinion and Order: For the reasons stated in the attached memorandum opinion and order, defendants' motions for summary judgment 148 153 are granted. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 2/9/2017:Mailed notice(srn, )
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Glenn Verser,
Plaintiff,
v.
Kanji Smith, Jerome Nickerson,
Theodore Fredericks, Imia Myles,
a/k/a Imia Myles-Johnson, and
Mary Diane Schwarz, P.A.,
Defendants.
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Case No. 14 C 1187
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
Plaintiff Glenn Verser was an inmate in the custody of the Illinois
Department of Corrections when he brought this pro se Section 1983 lawsuit
alleging that Defendants violated his constitutional rights. Currently before the
Court are two motions for summary judgment, one filed by the correctional officer
defendants (Smith, Nickerson, Fredericks and Myles 1), and one filed by the medical
defendant (Schwarz). See R. 148, 153. Plaintiff has responded to both motions
(R. 159, 161). For the reasons stated herein, Defendants’ motions are granted.
There has been come confusion in the record over whether Defendant Myles’s last
name is Myles or Johnson. See R. 155-3 at 3. The Court understands that her
correct name is Imia Myles, and therefore will refer to her accordingly.
1
I.
Factual Background
The following facts are taken from the record and presented in the light most
favorable to Plaintiff, the non-moving party, and all reasonable inferences are
drawn in his favor. Ricci v. DeStefano, 557 U.S. 557, 586 (2009).
On May 10, 2012, Verser was an inmate temporarily housed at the Stateville
Northern Reception and Classification Center (“NRC”). That morning, he was to be
transported on a court writ from the NRC to Cook County Circuit Criminal Court.
None of the defendants have any recollection of the events at issue, which happened
more than four years ago. Therefore, the Court must rely on Verser’s account of that
day.
According to Verser, he was in the holding cell waiting to be put on the bus
for transport to court when Officer Myles approached him and indicated she was
about to restrain him using a single pair of handcuffs and a black box. 2 Verser
informed Officer Myles that he had a medical permit allowing the use of double
cuffs. 3 Verser carried a copy of the medical permit with him, and he showed it to
Verser describes single handcuffing with a black box as being the standard
procedure by which inmates are handcuffed. It involves applying a single set of
handcuffs to the inmate’s wrists with the inmate’s hands held over each other, one
palm facing up and one palm facing down. See R. 155-2 at 8. A black box is a
“mechanism ‘applied over the chain and lock area of conventional handcuffs to form
a rigid link between the two wristlets.’” Knox. v. McGinnis, 998 F.2d 1405, 1407 n.3
(7th Cir. 1993) (citation omitted).
2
According to Verser, double-cuffing is when two sets of handcuffs are connected
together and used as one single cuff to provide a wider range of motion. See R. 155-2
at 14. Verser testified that he obtained the medical permit for double handcuffing
3
2
Officer Myles. Officer Myles informed her supervisor, Officer Nickerson, about
Verser’s medical permit. Verser showed Nickerson the permit, who then placed a
telephone call to Defendant Schwarz. Schwarz is employed by Wexford Health
Sources, Inc. as a Physician Assistant (“PA”) at the NRC. Nickerson explained to
Schwarz that Verser had a medical permit and he described the permit to her over
the telephone See R. 155-2 at 11. Verser was standing next to Nickerson when this
telephone conversation took place, but he could not hear Schwarz’s original
response. Id. Nickerson asked Schwarz to repeat what she had said and then held
the phone to Verser’s ear. Id. at 9, 11. Verser heard Schwarz say “we don’t honor
medical permits in Stateville.” Id.
Verser was deposed twice in this case, approximately one year apart. At his
first deposition, Verser was very specific that he had not yet been handcuffed when
Nickerson made the phone call to Schwarz, and that the handcuffing took place
after Nickerson hung up the phone and directed Officer Myles to restrain Verser
after he was injured from another handcuffing incident occurring in 2009, when he
also was being transported outside the prison on a court writ. The correctional
officers in charge on that day applied the handcuffs overly tight for 13 consecutive
hours, causing him “extreme pain,” and, when they finally removed the handcuffs,
either his right hand or just his thumb had gone completely numb. Id. at 12-13. As
a result of the injury he sustained in 2009 (to his thumb and/or right hand, see id. at
14), he obtained a medical permit for double cuffing. That permit was not the one
Verser presented to the correctional officers here, because, according to Verser, it
already had expired. Verser testified that the permit at issue here, which is
attached as Exhibit B to the complaint, was a renewal of the original one, id. at 13,
although the Court notes that Exhibit B has a check mark in the box next to the
words “New Order” rather than in the box next to the word “Renewal.” See R. 5 at 9.
3
according to the usual practice. See R. 155-2 at 16. At this point, Officer Myles
cuffed Verser’s hands in the front using a single pair of handcuffs. Verser was not
asked about Officer Smith at this first deposition. At his second deposition, Verser
again was very specific but this time testified that he already was wearing the
handcuffs when Nickerson made the phone call to Schwarz. He stated that he
showed Officer Myles the medical permit but she did not acknowledge it and
instead continued to place the handcuffs on him. See R. 155-3 at 4, 6. Verser
testified that as Myles was putting on the handcuffs, Officer Smith approached and
squeezed the handcuffs tighter, saying “that’s what you get for suing Malone.” The
reference to Malone was to another correctional officer against whom Verser had
filed an earlier § 1983 claim arising out of the 2009 handcuffing incident. See
footnote 3. Verser testified that he did not say anything to Officers Smith or Myles
about Smith’s comment or tightening of the handcuffs. Instead, he called the
medical permit to the attention of Nickerson. Id. at 7. After Nickerson made the
phone call to Schwarz and told Verser his medical permit could not be honored, id.
at 4, Verser complained to Officer Nickerson that the handcuffs were too tight. Id.
at 6. Officer Nickerson checked the cuffs, and told Officer Myles to loosen them. Id.
at 7, 4. According to Verser, Officer Myles ignored Officer Nickerson’s order, and
Officer Nickerson reacted by telling Verser that he would loosen the handcuffs once
Verser got on the bus. Id. at 5.
4
Officer Myles was assigned to accompany Verser to court. Verser testified
that he continued to complain to Officer Myles throughout the day that the
handcuffs were too tight. Id. at 6. He also complained to the state court judge before
whom he appeared and to other correctional officers, including Nickerson, Smith,
and Frederickson. Id.; see also R. 155-2 at 20. None of his complaints resulted in
any action being taken to loosen the handcuffs. He remained handcuffed for
approximately nine hours until he got back to the NRC. Verser testified that the
next day he suffered from pain in his hand, and that he asked to be examined by a
doctor but his request was either refused or ignored. R. 155-2 at 8, 18. He believes
that the injury done to his hand and/or wrist in 2009 was made worse by this
incident, but he has not submitted any medical evidence to support that belief. See
R. 155-2 at 18. He admits that he received no medical treatment as a result of the
incident, although he apparently was issued a new medical permit (Exhibit D to
complaint), which was later honored by prison officials when he went to court on
future writs. Id.
II.
Analysis
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56.; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “Material facts” are
those under the applicable substantive law that “might affect the outcome of the
5
suit.” Anderson, 477 U.S. at 248. A dispute over a “material fact” is “genuine” if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. In deciding a motion for summary judgment, the court will view the facts
in the light most favorable to the non-moving parties. Crull v. Sunderman, 384 F.3d
453, 460 (7th Cir. 2004).
A.
EIGHTH AMENDMENT CLAIM AGAINST CORRECTIONAL OFFICER
DEFENDANTS
Verser alleges that Officers Smith, Nickerson, Fredericks and Myles violated
the Eighth Amendment when they refused to honor his permit for medical
restraints, intentionally applied his handcuffs too tight, and refused to loosen the
handcuffs when he complained. The Court previously held that it was not clear
whether Verser’s Eighth Amendment claim against the correctional officer
defendants was governed by the excessive force standard set forth in Whitley v.
Albers, 475 U.S. 312 (1986), or the deliberate indifference standard of Farmer v.
Brennan, 511 U.S. 825 (1994). See R. 136 at 8 n.7 (Verser v. Smith, 2016 WL
3595727, at *3 n.7 (N.D. Ill. July 5, 2016)). Verser’s allegations give rise to a
situation where legitimate security concerns intersect with a prisoner’s alleged
medical needs, thus implicating both the excessive force standard and the
deliberate indifference standard. The Court therefore finds it necessary to break
down Verser’s Eighth Amendment handcuff claim into stages, in order to apply the
standard most appropriate for each stage.
6
1.
DEFENDANTS NICKERSON AND MYLES—ALLEGED
REFUSAL TO HONOR MEDICAL PERMIT
The Court previously held that Verser’s allegation that he had a medical
permit for double handcuffing raised the possibility that the correctional officer
defendants ignored that permit in bad faith, in which case Verser might have a
valid Eighth Amendment claim. See R. 136 at 9-14 (Verser, 2016 WL 3595727, at *4)
(citing inter alia Dominguez v. Moore, 149 Fed. App’x 281, 283-84 (5th Cir. 2005)
(allegations that the black box was used against inmate for punitive rather than
security reasons stated valid claim)). Now that discovery has taken place, it is clear
that the only correctional officer defendants against whom this claim can be made
are Myles and Nickerson because they are the only officers who the record shows
had knowledge of Verser’s medical permit. But even as to those two defendants,
Verser has failed to raise any disputed issue of fact. It is undisputed that, when
Verser presented Myles and Nickerson with his medical permit for double front
cuffing, they did not simply ignore it. Instead, Myles informed Nickerson, and
Nickerson contacted the medical unit. Nickerson spoke with P.A. Schwarz, who
instructed him that Verser’s claimed need for medical restraints could not be
honored. Under these circumstances, it cannot be said that Myles and Nickerson
refused to honor Verser’s medical permit “maliciously and sadistically for the very
purpose of causing harm” (Whitley, 475 U.S. at 320-21 (internal quotation marks
and citation omitted) or that their conduct constituted deliberate indifference to
Verser’s serious medical needs (Farmer, 511 U.S. at 828).
7
Nickerson and Myles have provided uncontradicted testimony that the proper
procedure in circumstances when “a prisoner presents a medical permit from
another correctional facility” is to consult with the Health Care Unit (“HCU”)
“regarding the validity of the permit or the need for an evaluation” rather than to
rely solely on the paper permit presented by the inmate, because “inmate’s [sic] will
often present doctored permits or be issued permits for medical restraints that are
not needed and would not be approved by a Stateville physician.” R. 155-5 at 2
(Nickerson Declaration); see also R. 155-7 at 2 (Myles Declaration) (same). Verser’s
testimony establishes that this is exactly what Nickerson did. He called the HCU
and spoke with Schwarz, explaining to her that Verser claimed that he needed
medical restraints and had a “permit.” Verser testified that Schwarz told Nickerson
not to honor the permit. Verser’s testimony thus demonstrates that Nickerson and
Myles followed the correct procedure in contacting Schwarz and that they did not
honor Verser’s medical permit at the direction of Schwarz. As a result, Nickerson’s
refusal to honor Verser’s medical permit (and farther down the chain of command,
Myles’s refusal to honor that permit) cannot give rise to an Eighth Amendment
violation. See Hayes v. Snyder, 546 F.3d 516, 527 (7th Cir. 2008) (“non-medical
officials are entitled to defer to the professional judgment of the facility’s medical
officials on questions of prisoners’ medical care”).
8
2.
DEFENDANTS NICKERSON, MYLES, SMITH, AND
FREDERICKSON--FAILURE TO LOOSEN HANDCUFFS
The Court also has little difficulty concluding that Verser has not raised a
disputed issue of fact regarding whether any of the correctional officer defendants
violated the Eighth Amendment by failing to loosen the handcuffs when Verser
complained they were too tight. Both because of Schwarz’s direction to Nickerson
and Myles to disregard Verser’s medical permit, and because there is no evidence
that any other correctional officer was even aware of Verser’s medical permit,
Verser cannot show that the correctional officer defendants were deliberately
indifferent to his serious medical needs. See Riccardo v. Rausch, 375 F.3d 521, 526
(7th Cir. 2004) (deliberate indifference standard means that prison official must
have subjective awareness of the inmate’s serious medical need). 4 Therefore, the
To establish liability on a deliberate indifference claim, Verser also would have to
establish that he had “an objectively serious medical need.” Zentmyer v. Kendall
Cnty., Ill., 220 F.3d 805, 810 (7th Cir. 2000). An objectively serious medical need is
“‘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 Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)
(citation and internal quotation omitted)). Verser testified that he had a serious
medical need because of the previous injury he sustained to his right hand after the
2009 cuffing incident. But Verser relies entirely on his testimony regarding the
seriousness of his hand injury, including his testimony that he was granted a
medical permit for double cuffing because of that injury. The Court is not convinced
that this testimony, even if combined with the documents attached to the complaint
reflecting that Verser was at certain points in time granted a medical permit for
double cuffing, is sufficient for a jury to find in Verser’s favor on the question of
whether he had an objectively serious medical condition on May 10, 2012 regarding
his wrist or hand. But the Court will nevertheless assume that it is for present
purposes.
4
9
Court will measure Verser’s claim based on failure to loosen the handcuffs against
the excessive force standard instead. Under this standard, Verser must show that
the correctional officers’ conduct did not constitute a “good-faith effort to maintain
. . . discipline [or security],” but rather was done “maliciously and sadistically to
cause harm.” DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000) (internal quotation
marks omitted) (quoting Whitley).
Courts must be reluctant to interfere with security measures instituted by
prison officials, especially when the issue is transport outside the prison facility.
Such measures do not violate the Eighth Amendment absent a showing that they
“constitute[ ] a wanton infliction of pain that is totally without penological
justification.” Hanna v. Lane, 610 F. Supp. 32, 35 (N.D. Ill. 1985). No such showing
has been made here. The only evidence in the record is Verser’s testimony that he
complained about the handcuffs being too tight and no one loosened them. Verser
was handcuffed according to standard procedure required for all prisoners when
being transported outside the prison facility. There is no evidence suggesting that
any of the correctional officers’ conduct in failing to loosen the handcuffs when
Verser complained about their tightness was without penological justification.
Therefore, Verser’s Eighth Amendment claim against the correctional officer
defendants for not loosening the handcuffs also fails as a matter of law. See, e.g.,
Knox v. McGinnis, 998 F.2d 1405, 1412 (7th Cir. 1993) (approving prison officials’
use of restrictive mechanisms such as handcuffs, “including the black box, on
10
special status prisoners when they are taken outside the prison or when they move
inside the prison to particularly vulnerable areas such as the law library or visiting
areas”); Moody v. Proctor, 986 F.2d 239, 241 (8th Cir. 1993) (per curiam) (“a policy
requiring all prisoners to wear a black box when outside of the prison does not
violate the Eighth Amendment because, although the black box causes discomfort,
its use is penologically justified”).
3.
DEFENDANTS SMITH AND MYLES--ALLEGEDLY
MALICIOUS TIGHTENING OF THE HANDCUFFS
Verser’s testimony regarding Officer Smith’s tightening of the handcuffs
presents a different excessive force claim than the claim against all of the
correctional officers based on their refusal to loosen the handcuffs. Verser testified
that Officer Smith approached when Officer Myles was placing the handcuffs on
him and tightened the handcuffs to the point where he was in pain, stating “this is
what you get for suing Malone.” As previously noted, the excessive force standard,
rather than the deliberate indifference standard, applies to this aspect of Verser’s
Eighth Amendment claim. 5 Also as previously noted, the issue in the excessive force
context 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.”
Whitley, 475 U.S. at 320-21 (internal quotation marks and citation omitted). Officer
The record is somewhat unclear whether Officer Smith approached Verser before
or after the phone call to P.A. Schwarz, but there is no evidence that Officer Smith
knew about, let alone disregarded, Verser’s medical permit.
5
11
Smith cannot dispute Verser’s account of what happened because he does not
remember the events of that day. However, he states in a declaration that he had no
knowledge of any lawsuit that Verser brought against Glenn Malone until Verser
filed the present complaint against him. R. 155-4. at 1. This testimony juxtaposed
against Verser’s testimony that Officer Smith mentioned the lawsuit when he
tightened the handcuffs creates a disputed issue of fact regarding Officer Smith’s
subjective motives. That disputed fact issue cannot be resolved on summary
judgment.
Nevertheless, the Court grants summary judgment in favor of Officer Smith
for a different reason. As the Supreme Court has explained, not “every malevolent
touch by a prison guard gives rise to a federal cause of action. The Eighth
Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes
from constitutional recognition de minimis uses of physical force, provided that the
use of force is not of a sort repugnant to the conscience of mankind.” Hudson v.
McMillian, 503 U.S. 1, 9-10 (1992) (internal quotation marks and citation omitted).
Here, the Court concludes that, even if a jury were to believe Verser’s account of
what happened and find that Officer Smith acted with a malicious intent when he
tightened Verser’s handcuffs, no reasonable jury could conclude on the facts
presented that the physical force used by Smith was constitutionally excessive. The
constitutional excessiveness issue turns on a variety of factors, including “the need
for an application of force, the relationship between that need and the force applied,
12
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. With regard to the last of these factors, while significant injury is not
required, a claim ordinarily cannot be predicated upon a de minimis use of physical
force.” DeWalt, 224 F.3d at 619-20 (internal citations omitted).
In DeWalt, the Seventh Circuit applied this test in a manner this Court finds
dispositive here. DeWalt involved an excessive force claim against a correctional
officer also named Smith (the Court cannot tell if it is the same officer as the
defendant in this case or a different one with the same last name). The Seventh
Circuit held as a matter of law that:
Officer Smith’s simple act of shoving Mr. DeWalt qualifies
as the kind of de minimis use of force that does not
constitute cruel and unusual punishment. . . . The shove
was a single and isolated act, unaccompanied by further
uses of force. Moreover, the bruising Mr. DeWalt allegedly
suffered does not appear to have been particularly
serious. Although we certainly do not condone the
unjustified use of force by prison guards, Mr. DeWalt’s
allegations regarding Officer Smith’s use of force against
him fall short of what is required to state a claim for
excessive force under the Eighth Amendment.
224 F.3d at 620.
Similarly here, the Court does not condone Officer Smith’s conduct (assuming
Verser’s allegations are true). But Verser’s rendition of what happened consists of a
single act of tightening Verser’s handcuffs unaccompanied by any further use of
force. Moreover, the record is insufficient to show that Verser suffered any serious
13
injury from the tightening. Verser testified that he experienced pain which lasted
through the next day. The more permanent injuries to his hand to which he testified
were sustained as a result of the 2009 cuffing incident for which he previously
sued. 6 He admitted that he currently does not suffer any pain in his hand except for
when he is handcuffed, which he suffers because of the previous injury. See R. 155-2
at 19. 7
While Verser testified that the preexisting injury to his hand was exacerbated by
the incident at issue here, that testimony is vague at best and insufficient in any
event to establish a permanent lasting injury from the 2012 cuffing incident. See
R. 155-2 at 18 (“Q. . . . [W]ere you injured as a result of this cuffing? A. Absolutely.
Like I said, it started –in 09 it started with my thumb. Now since then the bridge of
my hands just – I’m a – my field of occupation is construction and I have about 50
percent use of my hand.”). Verser’s further testimony that his wrist is worse now
than it was in 2009, id. at 18, also is conclusory and unsupported by any specific
medical facts or evidence. While Verser asserts he sought medical attention after
the incident but was refused, he has presented no evidence to back up that claim.
6
This Court’s previous ruling denying Officer Myles’s motion to dismiss rejected the
argument that Verser’s Eighth Amendment claim must be dismissed on the
pleadings because Verser had not alleged facts to support a finding that he suffered
anything other than a de minimis injury. The Court’s ruling was based primarily on
the fact that the extent to which Verser had been injured was not clear from the
complaint’s allegations. In addition, the Court also noted that the Supreme Court in
Hudson established that a particular use of physical force cannot be considered de
minimis as a matter of law solely because the injury suffered by the inmate might
be characterized as de minimis. The Court could not determine based on the
complaint whether the use of force at issue here was de minimis given that the
allegations did not necessarily reveal the entire circumstances surrounding Verser’s
handcuffing, including the degree of injury suffered by Verser, and the pleading of
more specific facts or evidence was not required. The Court’s prior ruling on the
pleadings, however, does not prevent the Court from resolving the de minimus force
issue now, on summary judgment.
7
14
The Seventh Circuit said in Outlaw v. Newkirk, 259 F.3d 833, 839 (7th Cir.
2001), that a de minimis injury “strongly suggests that the force applied . . . was de
minimis.” Moreover, courts outside this jurisdiction have suggested that, in the
context of a handcuffing claim, proof of serious or permanent injuries is a necessary
element. For example, the Eighth Circuit held in Chambers v. Pennycook, 6341 F.3d
898, 907 (8th Cir. 2011), that “there is no uniform requirement that a plaintiff show
more than de minimis injury to establish an application of excessive force,” but
specifically noted that this general rule did not apply where handcuffing was
involved. Handcuffing, the court said, was different because it “inevitably involves
some use of force, and it almost inevitably will result in some irritation, minor
injury, or discomfort where the handcuffs are applied. To prove that the force
applied was excessive in that context, therefore, a plaintiff must demonstrate
something more.” Id.; see also United States v. Rodella, 804 F.3d 1317, 1328-29
(10th Cir. 2015) (holding that there is no “de minimis injury requirement for Fourth
Amendment excessive force claims in cases which involve more than handcuffing”)
(emphasis added); Crumley v. City of St. Paul, Minn., 324 F.3d 1003, 1008 (8th Cir.
2003) (“for the application of handcuffs to amount to excessive force there must be
something beyond allegations of minor injuries”); Rodiguez v. Farrell, 280 F.3d
1341, 1352 (11th Cir. 2002) (stating that “[p]ainful handcuffing, without more, is
not excessive force in cases where the resulting injuries are minimal”); Nolin v.
Isbell, 207 F.3d 1253, 1257-58 (11th Cir. 2000) (holding as a matter of law that the
15
amount of force used during an arrest to handcuff a suspect was not excessive and
would not defeat an officer’s qualified immunity where the resulting injury was
merely bruising); Foster v. Metropolitan Airports Comm’n, 914 F.2d 1076, 1082 (8th
Cir. 1990) (“Foster’s allegations of pain as a result of being handcuffed, without
some evidence of more permanent injury, are [not] sufficient to support his claim of
excessive force.”). 8
This body of case law involves handcuffing claims in the Fourth Amendment
context. Whereas in the Fourth Amendment context, arrests can involve a variety of
While the Seventh Circuit has not specifically held that a serious injury is
required for a handcuff claim under the Fourth Amendment, its case law suggests a
similar rule. See, e.g., Tibbs v. City of Chicago, 469 F.3d 661, 666 (7th Cir. 2006)
(“Tibbs likely suffered some discomfort and pain from handcuffs that Officer
Kooistra applied somewhat too tightly; . . . he experienced redness on his wrists for
less than two days; and he neither sought nor received medical care for any alleged
wrist injury. Tibbs cites no cases in which any court has permitted a plaintiff to
reach a jury based on such mild allegations. We agree with the district court that no
reasonable jury could find Officer Kooistra’s actions were objectively
unreasonable.”); see also Braun v. Baldwin, 346 F.3d 761, 763 (7th Cir. 2003)
(“Braun also claims to have been subjected to excessive force in the course of his
arrest, mainly because the handcuffs were fastened too tightly, but as there is no
indication that his arrest was effected in an unusual or improper manner, the
excessive-force claim has no possible merit.”) (internal citation omitted). Defendants
focus on language in Tibbs and other Seventh Circuit cases discussing whether the
plaintiff sufficiently alerted the officers to the pain or discomfort he or she was
experiencing from the handcuffs through the frequency and/or urgency of his or her
complaints about the handcuffs. While perhaps relevant to a Fourth Amendment
analysis of the excessive force issue, the Court does not think it is necessary to
examine that issue in the Eighth Amendment context where an inmate has not
shown any substantial injury from the handcuffs. In that situation, no Eighth
Amendment violation occurred even if the inmate repeatedly brought his
complaints about the pain he was experiencing from the handcuffs to the attention
of the correctional officers in charge.
8
16
circumstances that give rise to differing levels of security concerns, see, e.g., Fisher
v. City of Las Cruces, 584 F.3d 888, 896-99 (10th Cir. 2009), in the prison context,
the security interest of the penal institution is always the same and is always high.
Thus, in evaluating handcuffing claims in the Eighth Amendment context, courts
must be even more skeptical where there is an absence of proof regarding any
serious injury, and deference must be “extended to prison officials in acting to
insure the proper administration, safety and security of a penal institution.” Ort v.
White, 813 F.2d 318, 322 (11th Cir. 1987). The Supreme Court has noted that this
deference “extends to a prison security measure taken in response to an actual
confrontation with riotous inmates, just as it does to prophylactic or preventive
measures intended to reduce the incidence of these or any other breaches of prison
discipline.” Whitley, 475 U.S. at 322. If an inmate has not shown anything more
than a de minimis injury from the handcuffs, courts (or juries) should not secondguess a prison official’s motives for applying handcuffs tightly. An Eighth
Amendment claim has both a subjective and an objective component, and no valid
claim is stated where a plaintiff has put forth evidence only of the former. See
Lunsford v. Bennett 17 F.3d 1574, 1579, 1582-83 (7th Cir. 1994). For this reason,
Verser’s allegations fail to raise a triable issue against Officer Smith on the claim
that he violated the Eighth Amendment by tightening the handcuffs. Moreover,
because the Court concludes that Officer Smith is entitled to summary judgment on
Verser’s excessive force claim arising out of Smith’s alleged conduct of tightening
17
the handcuffs, the Court also concludes that Officer Myles is entitled to summary
judgment on Verser’s claim to hold her liable for Officer Smith’s conduct based on a
theory of failure to intervene. See Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir.
2005) (“In order for there to be a failure to intervene, it logically follows that there
must exist an underlying constitutional violation” (citing Fillmore v. Page, 358 F.3d
496, 505-06 (7th Cir. 2004) (plaintiff could not succeed on his failure to intervene
claim because he had failed to establish that guards used excessive force in violation
of his Eighth Amendment rights)).
B.
RETALIATION CLAIM—DEFENDANTS SMITH AND MYLES
The above analysis does not end the inquiry concerning Verser’s handcuff
claims against two of the correctional officers, Officers Smith and Myles, because
Verser also alleges that Smith had a retaliatory motive when he tightened the
handcuffs. “An act taken in retaliation for the exercise of a constitutionally
protected right is actionable under § 1983.” Matzker v. Herr, 748 F.2d 1142, 1150
(7th Cir. 1984), overruled in part on other other grounds, Salazar v. City of Chicago,
940 F.2d 233, 240-41 (7th Cir. 1991). Prisoners have a constitutional right of access
to the courts. DeWalt, 224 F.3d at 618. Thus, a prison official may not retaliate
against a prisoner because that prisoner filed a lawsuit. See Higgason v. Farley, 83
F.3d 807, 810 (7th Cir. 1996).
At the outset, the Court grants summary judgment to Officer Myles on
Verser’s retaliation claim. Verser seeks to hold Officer Myles liable for this claim
18
because she “failed to intervene” to prevent Smith’s retaliation. See R. 155-3 at 8
(Verser Dep.) (admitting that Myles did not retaliate against him but instead went
along with Smith’s retaliation). Law enforcement officials can be held liable under
§ 1983 for not intervening in a situation where another officer is violating an
inmate’s constitutional rights. See Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir.
2005). “An officer who is present and fails to intervene to prevent other law
enforcement officers from infringing the constitutional rights of citizens is liable
under § 1983 if that officer had reason to know: (1) that excessive force was being
used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional
violation has been committed by a law enforcement official; and the officer had a
realistic opportunity to intervene to prevent the harm from occurring.” Yang v.
Hardin, 37 F.3d 282, 285 (7th Cir. 1994). Verser’s retaliation claim against Officer
Myles fails because Verser has presented insufficient evidence to show that Myles
had reason to know that a constitutional violation, i.e., retaliation for Verser’s filing
of a previous lawsuit, had been committed by Officer Smith. Officer Myles states in
her declaration that she had no knowledge about Verser’s lawsuit against Malone
prior to Verser’s claims in this case, R. 155-7 at 2, and, unlike Officer Smith, Verser
has not testified that Officer Myles said anything that might suggest otherwise.
Verser also has presented no evidence that Myles heard Smith say “this is what you
get for suing Malone,” or that, if she did hear Smith make this comment, she
understood from it that Smith was retaliating against Verser for filing a lawsuit
19
against another correctional officer. In short, a reasonable jury could not conclude
based solely on her being in the vicinity when Smith tightened the handcuffs that
Myles knew that Smith was acting in violation of Verser’s rights.
Verser’s retaliation claim against Officer Smith presents a closer question.
The Court previously held that Verser had alleged a chronology of events from
which retaliation may be inferred. See R. 136 at 14-16 (Verser, 2016 WL 3595727, at
*6). The Court now concludes, however, that Verser has not submitted sufficient
evidence of retaliation to create a disputed issue of material fact on his retaliation
claim. “To prevail on his retaliation claim, [Verser] must show that (1) he engaged
in activity protected by the First Amendment; (2) he suffered a deprivation that
would likely deter First Amendment activity in the future; and (3) the First
Amendment activity was at least a motivating factor in [Smith’s] decision to take
the retaliatory action.” Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012) (internal
quotation marks and citation omitted). Several courts have noted that, because of
“both the near inevitability of decisions and actions by prison officials to which
prisoners will take exception and the ease with which claims of retaliation may be
fabricated,” courts should “examine prisoners’ claims of retaliation with skepticism
and particular care.” Colon v. Couglin, 58 F.3d 865, 872 (2d Cir. 1995) (internal
quotation marks and citation omitted); see also Gordon v. Bertsch, 2015 WL
10319307, at *8 (D.N.D. Oct. 30, 2015), report and recommendation adopted, 2016
WL 676365 (D.N.D. Feb. 18, 2016); Tafari v. McCarthy, 714 F. Supp. 2d 317, 346-47
20
(N.D.N.Y. 2010); Cameron v. Siddiq, 2007 WL 4210422, at *4 (M.D. Ala. Nov. 28,
2007).
Verser’s testimony concerning his previous lawsuit against another
correctional officer named Malone and the comment that Smith supposedly made to
him when he tightened the handcuffs is sufficient to establish a disputed issue of
fact on whether Verser can satisfy the first and third requirements of a retaliation
claim. But Verser has not provided sufficient evidence on the second requirement.
As noted, a retaliation claim requires an action that would likely deter First
Amendment activity in the future, which necessarily means that not every adverse
action gives rise to a claim of retaliation. See Ingraham v. Wright, 430 U.S. 651, 674
(1977) (“There is . . , a de minimis level of imposition with which the Constitution is
not concerned.”); Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982) (“It would
trivialize the First Amendment to hold that harassment for exercising the right of
free speech was always actionable no matter how unlikely to deter a person of
ordinary firmness from that exercise.”). Some adverse actions that have been held
to be not constitutionally cognizable include delay in delivery of an inmate’s mail,
Roseboro v. Gillespie, 791 F. Supp. 2d 353, 373-74 (S.D.N.Y. 2011), verbal
harassment, Tafari, 714 F. Supp. 2d at 364, and “comments that are merely
‘insulting’ or ‘disrespectful,’” Lunney v. Brureton, 2005 WL 121720 at *11 (S.D.N.Y.
Jan. 21, 2005), report & rec. adopted, 2005 WL 433285 (S.D.N.Y. Feb. 23, 2005).
21
The Seventh Circuit has held that denial of medical treatment is a
deprivation likely to dissuade a reasonable person from engaging in future First
Amendment activity. See Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015). But
Verser was not denied medical treatment by Officer Smith. Instead, the adverse
action Verser alleges Officer Smith took in retaliation for Verser’s filing of a lawsuit
against another correctional officer was the tightening of his handcuffs. There is no
evidence in the record, however, that Verser was subjected to physical restraint to
any significant degree more than he would have been had Officer Smith not
harbored a retaliatory motive. It is true that “an act in retaliation for the exercise of
a constitutionally protected right is actionable under Section 1983 even if the act,
when taken for different reasons, would have been proper.” Howland v. Kilquist,
833 F.2d 639, 644 (7th Cir. 1987). Thus, for example, the court held in Bridges v.
Gilbert, 557 F.3d 541, 552 (7th Cir. 2009), that the plaintiff stated a claim where the
alleged adverse actions consisted of “delays in his incoming and outgoing mail;
harassment by a guard kicking his cell door, turning his cell light off and on, and
opening his cell trap and slamming it shut in order to startle him when he was
sleeping;
unjustified disciplinary
charges;
and improper
dismissal
of his
grievances.” But here, Verser alleges only a single act, not “harassment” like in
Bridges, which was “by numerous prison employees in a variety of ways over a
period of several months.” Id. Moreover, to qualify as something that would deter an
ordinary individual from exercising his constitutional rights, the action must cause
22
some injury. See, e.g., Islam v. Goord, 2006 WL 2819651 at *7 (S.D.N.Y. Sept. 29,
2006) (tampering with mail is not an adverse action because plaintiff “does not
allege that he suffered any injury as a result of the alleged tampering”); Battice v.
Phillip, 2006 WL 2190565 at *6 (E.D.N.Y. Aug. 2, 2006) (dismissing retaliation
claim because there was no allegation or evidence to show “any injury as a result of
the minor delay in receiving one piece of mail”). The Court already has found that
the single act in question was a de minimis use of force from which Verser did not
suffer any serious injury. Thus, “[e]ven if intentional, this isolated incident is
‘simply de minimis and therefore outside the ambit of constitutional protection.’”
Battice, 2006 WL 2190565 at *6 (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d
Cir. 2001)); compare Davidson v. Flynn, 32 F.3d 27, 30 n.1 (2d Cir. 1994) (inmate’s
claim that correctional officers placed handcuffs on him too tightly and denied him
medical care for injuries resulting therefrom, in retaliation for his filing of lawsuits,
could not be dismissed on pleadings where inmate alleged he suffered permanent
scarring and numbness, but holding that the court’s ruling did “not preclude the
possibility” that claim may later be dismissed on a summary judgment).
C.
EIGHTH AMENDMENT CLAIM AGAINST MEDICAL DEFENDANT
Verser’s Eighth Amendment claim against Schwarz is based on Schwarz’s
refusal to honor his medical permit for double cuffing. The NRC is a temporary
housing facility located at the Statesville Correctional Center where an inmate is
held when he needs to be relocated away from the specific correctional center where
23
the inmate is assigned within the IDOC system (known as the inmate’s “parent
institution”). Verser was an inmate at the NRC at the time in question. It is
undisputed that when an inmate is temporarily assigned to the NRC, his complete
medical records do not accompany him there; they remain at the parent institution.
The medical staff at the inmate’s parent or transferring facility prepare a “transfer
summary,” which is supposed to include information about the inmate’s active
medical permits. Verser’s transfer summary did not show that he had an active
medical permit. Schwarz attaches a copy of the transfer summary to her declaration
to prove this fact, and Verser admits it.
To establish deliberate indifference to a medical condition, a prisoner must
show a condition that is sufficiently serious (objective component) and that an
official acted with a sufficiently culpable state of mind in failing to address the
condition (subjective component). See Farmer, 511 U.S. at 837 (deliberate
indifference exists only when an official “knows of and disregards an excessive risk
to an inmate’s health; the official must both be aware of the facts once the inference
could be drawn, that an substantial risk of serious harm exists, and he must also
draw that inference”). For purposes of her summary judgment motion, Schwarz
concedes that Verser can demonstrate he had an objectively serious medical need.
See R. 149 at 3-4; but see footnote 4. She argues, however, that if an inmate asserts
that he has an active medical permit, but the permit is not documented on his
transfer summary, a physician assistant is not being deliberately indifferent to that
24
inmate’s medical condition when she directs a correctional officer to disregard a
claimed “medical permit” that the inmate says he has from another institution. The
Court agrees that if the situation is as Schwarz describes, it is reasonable for the
physician assistant to do what Schwarz did here, which is defer to the transfer
summary because it is more authoritative than what the inmate says, even if the
inmate has a medical permit in his possession, which can be forged or altered. See
R. 150-1 at ¶ 40 (“Whereas an inmate can erroneously assert the existence of active
medical permits, and medical permits can be forged, a transfer summary sheet is
considered authoritative regarding the current care an inmate is receiving at his
parent institution.”).
The evidence shows that Schwarz was informed, via telephone call from
Officer Nickerson, that Verser had a medical permit for double cuffing. The medical
permit was issued at Menard on March 23, 2012. When Schwarz received this
information over the phone, she cross-checked Verser’s assertion that he had a
medical permit against his inmate transfer summary. Verser’s transfer summary
did not contain any notations reflecting active medical permits. There is no evidence
that Verser enlightened Schwarz as to why the medical permit in his possession had
been issued, or otherwise informed her about any medical condition underlying that
permit. There is also no evidence that Verser complained to her about an existing
injury or advised her that he was suffering from a particular medical issue. Rather,
when given the opportunity (at the time the phone call was placed to Schwarz),
25
Verser said nothing to her. As the medical permit from Menard contained no
information about any medical condition, and Verser admits that he did not provide
any more detail to her, Schwarz could not have been subjectively aware of any
serious medical need. To the extent that Schwarz was aware that Verser claimed he
had a medical need, the Court agrees that Schwarz did not act with reckless
indifference to that claimed need when Verser’s medical permit was not documented
on his transfer summary.
Verser argues Schwarz should have examined him before denying a medical
permit for double cuffing, and cites to an IDOC grievance letter attached to his
complaint as Exhibit A. That letter states in relevant part as follows:
Dear Mr. Verser:
This will finalize your grievances received on May 15, and
31, June 5 and 11, 2012, regarding Medical (denied
treatment for wrist and abdominal pain, pain medication,
colonoscopy and medical permit); . . .
Offender Verser alleges he was denied treatment for his
injured wrist and abdominal pain while on court writ . . .
He also claims he did not receive his pain medication . . .
Offender Verser grieves CO Johnson and CO Smith did
not honor his medical permit for double cuffing on May
10, 2012 while being escorted on a court writ.
Records indicate Offender Verser had a permit for medical
restraints dated January 12, 2012 to January 12, 2013
from Stateville CC for arthritic shoulder.
This office remanded Offender Verser’s grievance to
Stateville Correctional Center for a corrective action plan
of procedures for medical treatment of offenders on writ.
Per policy at Stateville CC, Offenders who indicated they
have a permit for medical restraints are reviewed by the
26
Doctor at the current facility, who determines if the
restraints are necessary.
Per Stateville NRC staff, on Tuesday prior to the
statewide transfer all writ medical documentation is sent
to the Parent facility. The medical documentation sent
from Menard CC to Stateville NRC for the April 4-May 16
2012 writ did not indicate Offender Verser was on Elavil
or Zantac, . . .
....
… The portion of the grievance regarding the medical
permit for cuffing is affirmed. Warden Lemke is to ensure
security staff are instructed on the procedures for medical
cuffing.
R. 5 at 7-8. A second grievance letter attached to the complaint addresses a
“grievance received on September 26, 2012 regarding Staff Conduct (did not honor
medical permit for cuffing) . . . while at Stateville NRC in July, 2012.” R. 5 at 10.
Although the second grievance letter acknowledges that Verser’s records indicated
that a medical permit for medical restraints from Stateville Correctional Center
was on file, it denied Verser’s grievance because his “allegation that [the medical
permit] was not honored” could not be confirmed. Id.
These letters are hearsay and cannot be relied on to establish the truth of the
matters asserted therein. But even if the Court were to consider them, a reasonable
jury could not decide based on them that Schwarz was deliberately indifferent to
Verser’s medical needs. The letters indicate that Verser had a permit for medical
restraints from Stateville, and the first letter states that the permit was for an
arthritic shoulder, not a wrist injury. Neither letter says anything about a medical
permit issued by Menard for double cuffing, which is the permit Verser relies on
27
here for his claim against Schwarz. Moreover, nothing in the letters contradicts
Schwarz’s testimony that Verser’s transfer summary did not contain any
information about the Menard double cuffing permit.
Verser argues that the letters establish that Schwarz was obligated to
examine him under “policies in place at Stateville Correctional Center.” R. 159 at 6.
But the failure of state prison officials to follow their own procedures does not, of
itself, violate the Constitution. Maust v. Headley, 959 F.2d 644, 648 (7th Cir.1992);
Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir. 1982); see also Thompson v. City
of Chicago, 472 F.3d 444, 454 (7th Cir. 2006) (a violation of a state actor’s policies or
regulations “is completely immaterial as to the question of whether a violation of
the federal constitution has been established.”). Moreover, the references in the
grievance letters to Stateville policy regarding the proper procedures when an
inmate claims a need for medical restraints do not provide an adequate basis for
understanding the full substance of the policy or procedures, and Verser has not
offered any additional evidence to fill in the missing details. Thus, it is impossible to
assess those policies (assuming they exist) in light of the facts of this case. For
instance, the first grievance letter refers to an examination by a doctor, not a
physician assistant. Moreover, the letter does not give any indication as to the
timing of when the examination is supposed to have occurred. It also is not clear
what the relationship is between the term “medical restraints” and “medical
permits” and whether Statesville’s policy addresses one or both of those things.
28
More important, it is not clear from the letter how the Statesville policy, which
appears to apply to Statesville permits for use of medical restraints, would account
for a medical permit issued by a parent institution of an inmate temporarily
assigned to the NRC. Based on Schwarz’s declaration, it seems possible that
Statesville’s policy on medical restraints might be satisfied if an inmate already was
examined by a doctor at his parent institution and received a medical permit from
that doctor, in which case cross-referencing the inmate’s transfer summary to see if
a doctor from another institution had issued a medical permit would be sufficient.
In sum, given the lack of information about the policy referenced in the grievance
letter and how it would fit into the facts of this case, no reasonable jury could
conclude that Schwarz violated the policy in question when she relied on the
transfer summary in the face of Verser’s contrary claim to a medical permit for
double handcuffing issued by his parent institution.
For the reasons discussed above, the Court finds that Verser has failed to
demonstrate that a triable issue exists as to whether Schwarz was deliberately
indifferent to his serious medical needs when she failed to honor his proffered
medical permit. As such, summary judgment is granted in Schwarz’s favor. 9
In the alternative to the above, the Court agrees with Schwarz that Verser has
failed to show a causal connection between her refusal to honor the Menard medical
permit with any injuries Verser may have suffered to his hand or wrist. In support
of that conclusion, the Court adopts its previous discussion of Verser’s failure to
produce evidence sufficient for a jury to find in his favor that the cuffing incident in
this case caused any injury or additional damage to his hand or wrist beyond the
injuries he already sustained after the 2009 incident.
9
29
III.
CONCLUSION
For the foregoing reasons, Defendants’ motions for summary judgment
(R. 148, 153) are granted.
ENTERED:
Thomas M. Durkin
United States District Judge
Dated: February 9, 2016
30
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