Redman v. Payne et al

Filing 10

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. IT IS ORDERED that the Clerk of Court shall prepare for Defendants PAYNE, LOWRY, and MOORE (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge G. Patrick Murphy on 3/30/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

ANTHONY REDMAN,

)
)
Plaintiff,
)
)
vs.
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MARK PAYNE, C/O LOWRY, and C/O )
MOORE,
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Defendants.
)

CIVIL NO. 11-347-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff Anthony Redman, an inmate in Lawrence Correctional Center, brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on an incident that
occurred while Plaintiff was housed at Centralia Correctional Center (“Centralia”). Plaintiff is serving
concurrent 12 year sentences for four counts of residential burglary along with concurrent sentences
on two other convictions. This case is now before the Court for a preliminary review of the complaint
pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any event, as soon
as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief may
be granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.
28 U.S.C. § 1915A.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke

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v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted
if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint is plausible on its face “when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418,
419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide
sufficient notice of a plaintiff’s claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally,
Courts “should not accept as adequate abstract recitations of the elements of a cause of action or
conclusory legal statements.” Id. At the same time, however, the factual allegations of a pro se
complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816,
821 (7th Cir. 2009).
Upon careful review of the complaint and any supporting exhibits, the Court finds that Plaintiffs
claims should receive further consideration.
The Complaint
On July 15, 2010, while Plaintiff was incarcerated at Centralia, Defendant Payne physically
assaulted him while escorting him to segregation. The incident began with a verbal altercation between
Plaintiff and Defendant Payne. Plaintiff’s hands were cuffed behind him. When they were out of view
of any witnesses, Plaintiff claims Defendant Payne grabbed Plaintiff’s cuffs and pushed down
forcefully, then jerked the cuffs upward, hurting Plaintiff’s wrists and shoulder and cutting his wrists
until they bled. Defendant Payne then pushed Plaintiff’s head into a door. Plaintiff asserts he offered
no physical resistance at any time during these events.
Defendant Lowry then took custody of Plaintiff, escorted him to the shower area, and locked
him in. Defendant Lowry then grabbed Plaintiff’s shirt through the bars and yanked Plaintiff toward
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the bars. Plaintiff’s head struck the bars, and Defendant Lowry punched Plaintiff’s face with his fist.
Again, Plaintiff maintains he did not resist and the attack was unprovoked. Defendant Moore stood by
and watched Defendant Lowry’s conduct without intervening. Defendant Lowry next removed
Plaintiff’s cuffs so he could strip and put on a segregation jumpsuit. Plaintiff’s hands were cuffed
behind him again, and Defendants Lowry and Moore took him to the segregation cell.
Defendant Lowry entered the cell with Plaintiff, where he punched Plaintiff in the jaw and
kicked him in the stomach and chest. Defendant Moore again witnessed this behavior without
intervention. A nurse came to the cell, cleaned up Plaintiff’s blood, and gave him some medication for
the swelling in his face.
Plaintiff seeks nominal, compensatory, and punitive damages for the use of excessive force
against him.
Discussion
The intentional use of excessive force by prison guards against an inmate without penological
justification constitutes cruel and unusual punishment in violation of the Eighth Amendment and is
actionable under § 1983. See Wilkins v. Gaddy, 130 S. Ct. 1175 (2010); DeWalt v. Carter, 224 F.3d 607,
619 (7th Cir. 2000).

An inmate must show that an assault occurred, and that “it was carried out

‘maliciously and sadistically’ rather than as part of ‘a good-faith effort to maintain or restore
discipline.’” Wilkins, 130 S. Ct. at 1180, citing Hudson v. McMillian, 503 U.S. 1, 6 (1992). An inmate
seeking damages for the use of excessive force need not establish serious bodily injury to make a claim,
but not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Id. (the
question is whether force was de minimis, not whether the injury suffered was de minimis); see also
Outlaw v. Newkirk, 259 F.3d 833, 837-38 (7th Cir. 2001).

At this stage of the litigation, Plaintiff’s allegations that Defendants Payne and Lowry yanked,
shoved, and struck him while he offered no resistance states a claim for excessive force that is not
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subject to dismissal.
Plaintiff further asserts that Defendant Moore merely stood by and watched Defendant Lowry
assault him, and seeks to hold Defendant Moore equally liable for his injuries due to his failure to
intervene. The Seventh Circuit has examined this issue as it pertains to police officers who fail to
intervene when a fellow officer exceeds his authority, stating:
We believe it is clear that one who is given the badge of authority of a police officer
may not ignore the duty imposed by his office and fail to stop other officers who
summarily punish a third person in his presence or otherwise within his knowledge.
That responsibility obviously obtains when the nonfeasor is a supervisory officer to
whose direction misfeasor officers are committed. So, too, the same responsibility must
exist as to nonsupervisory officers who are present at the scene of such summary
punishment, for to hold otherwise would be to insulate nonsupervisory officers from
liability for reasonably foreseeable consequences of the neglect of their duty to enforce
the laws and preserve the peace.
Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972); see also Lanigan v. Vill. of E. Hazel Crest, 110 F.3d
467, 477 (7th Cir. 1997); Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (collected cases); Archie
v. City of Racine, 826 F.2d 480, 491 (7th Cir. 1987).
Accordingly, Plaintiff shall also be allowed to proceed with his excessive force claim against
Defendant Moore.
Disposition
IT IS ORDERED that the Clerk of Court shall prepare for Defendants PAYNE, LOWRY, and
MOORE (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form
6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the
complaint, and this Memorandum and Order to each Defendant’s place of employment as identified by
Plaintiff. If a Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the
Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to effect
formal service on that Defendant, and the Court will require that Defendant to pay the full costs of

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formal service, to the extent authorized by the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that, with respect to a Defendant who no longer can be found
at the work address provided by Plaintiff, the employer shall furnish the Clerk with the Defendant’s
current work address, or, if not known, the Defendant’s last-known address. This information shall be
used only for sending the forms as directed above or for formally effecting service. Any documentation
of the address shall be retained only by the Clerk. Address information shall not be maintained in the
court file or disclosed by the Clerk.
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendants (or upon defense
counsel once an appearance is entered), a copy of every pleading or other document submitted for
consideration by the Court. Plaintiff shall include with the original paper to be filed a certificate stating
the date on which a true and correct copy of the document was served on Defendants or counsel. Any
paper received by a district judge or magistrate judge that has not been filed with the Clerk or that fails
to include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the complaint
and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate Judge
Wilkerson for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Wilkerson for
disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties
consent to such a referral.
IT IS FURTHER ORDERED that if judgment is rendered against Plaintiff, and the judgment
includes the payment of costs under § 1915, Plaintiff will be required to pay the full amount of the
costs, notwithstanding that his application to proceed in forma pauperis has been granted. See 28

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U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for leave
to commence this civil action without being required to prepay fees and costs or give security for the
same, the applicant and his or her attorney were deemed to have entered into a stipulation that the
recovery, if any, secured in the action shall be paid to the Clerk of the Court, who shall pay therefrom
all unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule 3.1(c)(1)
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of
Court and each opposing party informed of any change in his address; the Court will not independently
investigate his whereabouts. This shall be done in writing and not later than 7 days after a transfer or
other change in address occurs. Failure to comply with this order will cause a delay in the transmission
of court documents and may result in dismissal of this action for want of prosecution. See FED. R. CIV.
P. 41(b).
IT IS SO ORDERED.
DATED: March 30, 2012
s/ ZA ctàÜ|v~ `âÜÑ{ç
G. PATRICK MURPHY
United States District Judge

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