Dupree v. Maue et al
ORDER FOLLOWING BENCH TRIAL. Attorney Gordon E. Freese is hereby terminated from this action. Signed by Magistrate Judge Donald G. Wilkerson on 8/23/11. (alg)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSHUA FRITZ, et al.,
Case No. 08-cv-00618-DGW
ORDER FOLLOWING BENCH TRIAL
Having considered the evidence introduced and the legal arguments made at the one-day
bench trial held on August 22, 2011, the Court makes the following findings of facts and
conclusion of law.
FINDINGS OF FACT
Plaintiff, Cedric Dupree, is currently incarcerated within the Illinois Department of
Corrections at Pontiac Correctional Center. Plaintiff brings the instant matter pursuant to 42
U.S.C. § 1983 alleging that Defendants Joshua Fritz, John Mohr, Brian Thomas, David Holder,
George Holton and Michael Schnicker violated his First and Eighth Amendment rights during
his incarceration at Menard Correctional Center (“Menard”).
Plaintiff’s Second Amended Complaint (Doc. 145)
In Count I of his Second Amended Complaint, Plaintiff alleges that on October 3, and 4,
2006, Defendant Brian Thomas maliciously and sadistically for purposes of causing harm
twisted and pulled down on Plaintiff’s handcuffs. Plaintiff alleges these acts were taken to
retaliate against him for successfully bringing a lawsuit against staff at Pontiac Correctional
Plaintiff also alleges on May 6, 2008, Defendants David Holder, George Holton, and
Michael Schnicker maliciously and sadistically for purposes of causing harm handcuffed the
Plaintiff, beat him, and tore his toenails out of his feet. Plaintiff alleges these acts were taken to
retaliate against him for successfully bringing a lawsuit against staff at Pontiac Correctional
Center. Finally, Plaintiff alleges in Count I that Defendants Holder, Holton, and Schicker denied
the Plaintiff access to medical care for a serious medical need on May 6, 2008, to retaliate
against him for successfully bringing a lawsuit against staff at Pontiac Correctional Center.
Plaintiff alleges in Count II that on September 19, 2006, Defendant Joshua Fritz
maliciously and sadistically for purposes of causing harm slapped Plaintiff in the face and
stomped on his toes in violation of the Eighth Amendment.
Plaintiff alleges in Count III that on September 19, 2006, Defendant John Mohr was
deliberately indifferent to Plaintiff’s panic attack and wrist cutting by denying the Plaintiff
access to health care in violation of the Eighth Amendment.
Plaintiff alleges in Count V that on May 6, 2008, Defendants Holder, Holton, and
Schnicker maliciously and sadistically for purposes of causing harm handcuffed the Plaintiff,
beat him, and tore his toenails out of his feet in violation of the Eighth Amendment.
Plaintiff alleges in Count VI that on May 6, 2008, Defendants Holder, Holton, and
Schnicker were deliberately indifferent to Plaintiff by leaving him lying in his cell bleeding and
unconscious after the alleged attack without providing him access to health care in violation of
the Eighth Amendment.
Defendants Holder, Holton, Schnicker, Thomas and Fritz deny that any act or omission
on their part violated the Plaintiff's constitutional rights. Defendants deny each allegation made
by the Plaintiff. Specifically, Defendants deny taking any action out of retaliation against the
Defendants deny taking any action maliciously and sadistically for purposes of
harming the Plaintiff. Defendants deny Plaintiff suffered from a serious medical need for which
immediate medical treatment was denied.
Defendants deny preventing the Plaintiff from
accessing medical treatment at Menard Correctional Center.
During the bench trial on August 22, 2011, the following evidence placed Plaintiff’s
credibility into question:
1) Plaintiff testified that he has a prior conviction for a crime of deceit: false
impersonation of the police;
2) In his March 12, 2010 deposition, Plaintiff testified that he had never made
allegations that prison medical staff had advised him of a better way to commit
suicide. However, at trial, Plaintiff admitted that he has made these allegations
against various correctional staff in past grievances and lawsuits;
3) Plaintiff also testified in his deposition that he used a “piece of metal hidden in his
hair” to cut his wrists on the second occasion. However, during trial, Plaintiff
asserted that he used material from his bed to cut his wrists;
4) Plaintiff testified that on September 19, 2006 at 10:00 a.m., Defendant Fritz slapped
in him in the face, stomped on his toes and called him racially derogatory names
while he was standing in line on Front Street at the Menard. Plaintiff testified that
this incident occurred in the presence of a superior correctional officer. However,
Defendant Fritz testified that he was not working on September 19, 2006 at 10:00
a.m. because he worked the 3:00 p.m. to 11:00 p.m. shift. He testified that even if he
had worked overtime that morning, he could not have been working the North 2
Cellhouse because one must be assigned to work in segregation and he was not.
Additionally, Fritz testified that Front Street is under watch by four towers and
5) Additionally, Plaintiff testified at trial that on May 7, 2008, that after being beaten by
guards at Menard prior to being to court for trial, he was in such pain that the judge
ordered him taken to the hospital. However, the evidence at trial demonstrated that
Plaintiff had used his feet to kick his cell doors twice that day. Earlier in the day,
Plaintiff kicked the plexiglass door of his cell for 15 minutes after he refused to go on
his court writ. Further, once he arrived at the courthouse in East St. Louis Plaintiff
created such a disturbance in the holding cell, by kicking the bars with his feet and
screaming, that the judge looked at his feet and ordered him taken to the hospital for
treatment over the lunch recess. The trial was never delayed and his feet were treated
and wrapped by staff at Kenneth Hall Hospital in East St. Louis, Illinois;
6) Plaintiff’s medical records indicate that he never asked for medical treatment once he
was returned to Menard. Additionally, those medical records indicate that he saw
medical staff on May 7, 2008 and did not mention any problems with his feet; and
7) Plaintiff’s Medical Records dated July 2006 to May 2008, which were admitted into
evidence without any objection from Plaintiff, contained numerous statements made
by Plaintiff as to his desire to spend the remainder of his incarceration within the
infirmary. The medical records are also rife with references to statements made to
prison medical staff that Plaintiff had numerous lawsuits pending against correctional
STANDARD OF REVIEW
The burden of proof in civil cases is the same regardless of whether the finder of fact is a
jury or a judge in a bench trial. Fire Ins. Exchange v. McCoy, 637 F.Supp.2d 991, 992 (M.D.
Ala. 2009). That is, a plaintiff bears the burden of satisfying the finder of fact that he has proven
every element of his claims by a preponderance of the evidence. Id. A preponderance of the
evidence means that such evidence, after having considered all the evidence in the case, “is more
probably true than not true." See Seventh Circuit Federal Jury Instructions (Civil), Instruction
No. 1.27 (2010). In bench trials, the judge serves as the sole fact-finder and, thus, assumes the
role of the jury. In this capacity, the judge’s function includes weighing the evidence, evaluating
the credibility of witnesses, and deciding questions of fact and issues of law. See generally
Childrey v. Bennett, 997 F.2d 830, 834 (11th Cir. 1993). Credible testimony is that which meets
the test of plausibility. Indiana Metal Products v. N.L.R.B., 442 F.2d 46, 53 (7th Cir. 1971)
(citing Lester v. State, 370 S.W.2d 405, 408 (Tenn. 1963))
CONCLUSIONS OF LAW
This case is principally rests on the credibility of witness testimony. Plaintiff alleges that
defendants violated his First and Eighth Amendment rights during his incarceration at Menard by
retaliating against him, assaulting him and denying him medical care. Defendants deny those
allegations and maintain that any injuries Plaintiff suffered were self-inflicted.
Based upon the testimony and evidence presented at trial, the Court finds Plaintiff’s
testimony not credible. It implausible that Plaintiff was assaulted on Front Street in Menard in
full view of numerous prison staff and inmates, and no prison staff or inmate reported this
incident. Front Street is the main egress of Menard, the state’s largest prison and houses over
It is also inconceivable that Plaintiff was assaulted and left bleeding without medical care
on May 7, 2006, a date that he had to leave the prison on a court writ. It is more likely that any
injuries suffered by Plaintiff were self-inflicted. The evidence revealed that on May 7, 2008,
Plaintiff kicked the plexiglass or metal doors of his cell with his bare feet on at least two
occasions. Moreover, Plaintiff’s medical records indicate that he never asked for medical care
once he returned to the Menard.
Further, the Court finds retired Correctional Medical Technician John Mohr’s testimony
credible. Mohr testified that he did not instruct Plaintiff on a more efficient way to commit
suicide. Plaintiff testified that Mohr told him to cut deeper next time and showed him where he
had attempted suicide. Mohr testified that he had visible scars from a motorcycle accident and
had never attempted to commit suicide. The Court does not find it plausible that correctional
staff would discuss failed suicide attempts with inmates.
Most importantly, Plaintiff told untruths throughout the pendency of these proceedings.
He changed his version of events at least twice from his March 12, 2010 deposition to trial. He
embellished the incident of May 7, 2008 to intimate to the Court that he was in a grave condition
when taken to the hospital, when in fact he was taken over the lunch recess. Plaintiff is not
believable and the Court has no confidence in any of his testimony.
While it is evident that Plaintiff had interactions with Defendants on the dates in
question, Plaintiff has not met his burden of proof as to the allegations set forth in Counts I, II,
III and V and VI. Therefore, the Court adopts Defendants’ assertions and finds that Plaintiff has
failed to establish violations of Retaliation, Excessive Force and Deliberate Indifference to
Serious Medical Needs. Because the case may be disposed of on the merits of these claims, the
Court finds it unnecessary to make additional finds on the qualified immunity and punitive
damages claims. Judgment will be entered in favor of Defendants and against Plaintiff on all
claims. Plaintiff shall take nothing from this action.
Per the Court’s Order on April 14, 2009, Gordon E. Freese was appointed to represent
Plaintiff in this matter only for pretrial and trial proceedings (Doc. 24). Since the trial has
concluded, Mr. Freese is hereby released from his appointment.
IT IS SO ORDERED.
DATED: August 23, 2011
DONALD G. WILKERSON
United States Magistrate Judge
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