Winkfield v. Warden et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier, denying 6 MOTION to Pay My Fees filed by Larry Winkfield.. Signed by Judge J. Phil Gilbert on 6/18/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LARRY WINKFIELD, #R-74765,
Plaintiff,
vs.
WARDEN, SGT. FOLSOM,
C/O DEEN, LT. QUIGLEY,
and UNKOWN PARTY,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 14-cv-00584-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Larry Winkfield, an inmate who is currently incarcerated at Pontiac Correctional
Center (“Pontiac”), brings this civil rights action pursuant to 42 U.S.C. § 1983 (Doc. 1) for
constitutional deprivations that arose from his assault by two officials at Shawnee Correctional
Center (“Shawnee”) on August 20, 2013. Plaintiff now sues the two officials, Sergeant Folsom
and C/O Deen, for their use of excessive force against him and for his subsequent denial of
access to medical care.

He also sues three other officials, including Shawnee’s warden,

Lieutenant Quigley, and Internal Affairs Officer Doe, in conjunction with this incident.
Plaintiff seeks monetary relief (Doc. 1, p. 9).
The Complaint
According to the complaint, Plaintiff was assaulted by Defendants Folsom and Deen on
August 20, 2013 (Doc. 1, pp. 5-8). On that date, Defendant Folsom asked Plaintiff to identify
the owner of a bottle of body wash in Plaintiff’s cell. Plaintiff identified the body wash as his
own.

When Defendant Folsom asked Plaintiff to explain why it was in his cell,

Plaintiff responded, “. . . to wash up and to clean my cell[.] [W]hy do you think people got
1

bodywash in there cell for? [T]hat was a crazy a** question you ask me ‘why do you got soap at
home for sir[’]?(sic)” (Doc. 1, p. 6).
In response to Plaintiff’s comments, Defendant Folsom allegedly “threw” Plaintiff’s head
into the wall and punched him in the left eye, causing Plaintiff to become dizzy and suffer from
blurred vision (Doc. 1, p. 6). Defendant Deen entered the cell and used his body to pin Plaintiff
against the wall, as Plaintiff and Defendant Folsom “had a few more words” (Doc. 1, p. 6).
Defendant Folsom tossed Plaintiff’s fan onto the floor, destroying it. Both Defendants then
pulled Plaintiff’s arm through the chuckhole to take off his handcuffs and cut Plaintiff’s arm in
the process, causing bad bleeding.
Plaintiff informed the “major, warden, and lieutenant” about the assault (Doc. 1, pp. 6-7).
In response, they placed him in handcuffs and moved him to a different cell “out of spite”
(Doc. 1, p. 7). Plaintiff wrote a grievance and a letter to internal affairs, but he received no
response.
Plaintiff also told Defendant Quigley about his injuries during an adjustment committee
hearing that followed (Doc. 1, p. 7). Defendant Quigley agreed to talk to internal affairs about
the incident and to have photos taken of Plaintiff’s swollen eye, but nothing was ever done.
Plaintiff also provided Defendant Quigley with the names of potential witnesses, but none were
ever contacted.
Plaintiff received no medical treatment for his injuries until the day after the incident.
At some point, a doctor gave him Prednisolone1 for his eye and recommended treatment at a
hospital (Doc. 1, p. 8). However, as of the date he filed this action approximately nine months

1

Prednisolone is a synthetic adrenal corticosteroid that is used to treat a number of conditions, including
inflammation, severe allergies, adrenal problems, arthritis, asthma, eye or vision problems, etc. See
http://www.mayoclinic.org/drugs-supplements/prednisolone-oral-route/description/drg-20075189.

2

later, Plaintiff had not been to a hospital and continues to suffer from blurry vision and a runny
eye.
Plaintiff now sues Defendants Shawnee’s warden, Folsom, Deen, Quigley, and Doe for
unspecified

constitutional

violations

that

allegedly

resulted

from

the

incident

on

August 20, 2013. He seeks monetary damages (Doc. 1, p. 9).
Merits Review Under 28 U.S.C. § 1915A
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A.

Under § 1915A, the Court is required to promptly screen prisoner

complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to
dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim
upon which relief may be granted, or asks for money damages from a defendant who by law is
immune from such relief. 28 U.S.C. § 1915A(b).
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke 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). The claim of entitlement to
relief

must

cross

“the

line

between

possibility

and

plausibility.”

Id.

at

557.

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, 556 U.S. 662, 678 (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

3

“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). After carefully considering the allegations, the Court finds that
Plaintiff’s complaint survives preliminary review under § 1915A.
Discussion
Plaintiff brings this suit against five state officials for constitutional violations that arose
from his alleged assault on August 20, 2013. In the absence of any reference to specific
constitutional violations, the Court finds it convenient to divide the complaint into four counts
for the purpose of this discussion. The parties and the Court will use these designations in all
future pleadings and orders, unless otherwise directed by a judicial officer of this Court.
Count 1:

Eighth Amendment excessive force claim;

Count 2:

Eighth Amendment deliberate indifference to serious medical
needs claim;

Count 3:

Eighth Amendment failure to protect claim; and

Count 4:

Fourteenth Amendment failure to investigate claim.

Count 1 – Excessive Force
After carefully considering the allegations, the Court finds that the complaint states a
colorable excessive force claim (Count 1) against Defendants Folsom and Deen. 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, 559 U.S. 34 (2010); DeWalt v. Carter, 224 F.3d 607, 619
(7th Cir. 2000). To state an excessive force claim, 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
4

effort to maintain or restore discipline.’” Wilkins, 559 U.S. at 40 (citing Hudson v. McMillian,
503 U.S. 1, 6 (1992)). The allegations in the complaint suggest that Defendants Folsom and
Deen used excessive force against Plaintiff on August 20, 2013. Accordingly, Plaintiff shall be
allowed to proceed with Count 1 against them at this early stage in litigation.
However, Shawnee’s warden and Defendants Doe and Quigley are not mentioned, or
implicated, in connection with the excessive force claim, so Plaintiff cannot proceed with Count
1 against them. Section 1983 creates a cause of action based on personal liability and predicated
upon fault; thus, “to be liable under [Section] 1983, an individual defendant must have caused or
participated in a constitutional deprivation.” Pepper v. Village of Oak Park, 430 F.3d 809, 810
(7th Cir. 2005) (citations omitted). As a result, the doctrine of respondeat superior does not
apply to actions filed under 42 U.S.C. § 1983. See, e.g., Kinslow v. Pullara, 538 F.3d 687, 692
(7th Cir. 2008). No allegations in the complaint suggest that any of these three defendants
participated in the use of excessive force against Plaintiff or approved of it.
Based on the foregoing discussion, Plaintiff shall be allowed to proceed with Count 1
against Defendants Folsom and Deen.

However, this claim shall be dismissed against

Defendants Shawnee’s warden, Quigley, and Doe.
Count 2 – Deliberate Indifference to Medical Needs
The complaint also states a colorable Eighth Amendment denial of medical needs claim
(Count 2) against Defendants Folsom and Deen, for failing to secure medical treatment for
Plaintiff following the alleged assault.

This claim fails against all remaining defendants,

including Defendants Shawnee’s warden, Quigley, and Doe.
Relevant to Plaintiff’s claim, the Supreme Court has recognized that “deliberate
indifference to serious medical needs of prisoners” may constitute cruel and unusual punishment

5

under the Eighth Amendment.

Estelle v. Gamble, 429 U.S. 97, 104 (1976);

see Erickson v. Pardus, 551 U.S. 89, 94 (2006) (per curiam). To state a claim, “[t]he plaintiff
must show that (1) the medical condition was objectively serious, and (2) the state officials acted
with deliberate indifference to his medical needs, which is a subjective standard.”
Sherrod v. Lingle, 223 F.3d 605, 619 (7th Cir. 2000).
A serious medical need is one that is obvious to a lay person or one that has been
diagnosed by a physician as requiring treatment. Gutierrez v. Peters, 111 F.3d 1364, 1373
(7th Cir. 1997). At this early stage, the Court finds that Plaintiff’s allegations of a swollen eye,
runny eye, blurry vision, and badly bleeding arm are sufficiently serious to support an Eighth
Amendment claim.
To establish deliberate indifference, Plaintiff “must demonstrate that prison officials
acted with a “‘sufficiently culpable state of mind.’” Greeno v. Daley, 414 F.3d 645, 653
(7th Cir. 2005) (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). Officials must “know of
and disregard an excessive risk to inmate health” by being “‘aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists’” and “‘draw[ing] the
inference.’” Greeno, 414 F.3d at 653 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
Plaintiff is not required to establish that the officials “intended or desired the harm that
transpired,” but to instead show that they “knew of a substantial risk of harm . . . and disregarded
it.” Greeno, 414 F.3d at 653.
The complaint suggests that Defendants Folsom and Deen were deliberately indifferent to
Plaintiff’s medical needs when they took no steps to secure medical care for him following the
assault.

However, the complaint does not support a claim against Defendants Shawnee’s

warden, Quigley, or Doe. No allegations suggest that these defendants had any knowledge of

6

Plaintiff’s injuries or were asked for assistance in obtaining treatment. Instead, the complaint
vaguely alludes to putting a “major, warden, and lieutenant” on notice of the assault, without
naming anyone who specifically denied Plaintiff access to medical care after learning of his
injuries and need for treatment.
Based on the foregoing discussion, Plaintiff shall be allowed to proceed with Count 2
against Defendants Folsom and Deen.

However, this claim shall be dismissed against

Defendants Shawnee’s warden, Quigley, and Doe.
Count 3 – Failure to Protect
The complaint fails to state a failure to protect claim under the Eighth Amendment
(Count 3) against any Defendants. In order for a plaintiff to succeed on a failure to protect
claim, he must show that he is incarcerated under conditions posing a substantial risk of serious
harm, and that the defendants acted with “deliberate indifference” to that danger.
Farmer, 511 U.S. at 834. A plaintiff also must prove that prison officials were aware of a
specific, impending, and substantial threat to his safety, often by showing that he complained to
prison officials about a specific threat to his safety. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir.
1996). In other words, Defendants had to know that there was a substantial risk that those who
attacked Plaintiff would do so, yet failed to take any action. See Sanville v. McCaughtry,
266 F.3d 724, 733-34 (7th Cir. 2001).

However, conduct that amounts to negligence or

inadvertence is not enough to state a claim. Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006)
(discussing Watts v. Laurent, 774 F.2d 168, 172 (7th Cir. 1985)).
The allegations do not suggest that any Defendant was aware of a specific threat to
Plaintiff’s safety, yet failed to act. Instead, the August 2013 incident appears to have occurred
without warning to anyone, even Plaintiff. Although Plaintiff alleges that he told a “major,

7

warden, and lieutenant” about the assault after the fact, he goes on to allege that they
immediately relocated him to another cell (Doc. 1, pp. 6-7). This relocation of Plaintiff to
another cell following the assault suggests that the officials were trying to remove Plaintiff from
harm’s way, not place him at further risk of assault. Accordingly, Count 3 shall be dismissed
without prejudice against all Defendants for failure to state a claim upon which relief may be
granted.
Count 4 – Failure to Investigate
Finally, the complaint offers no basis for a claim against Defendant Quigley, or any other
Defendant, based on his alleged failure to investigate the August 2013 incident at Plaintiff’s
urging. The failure to investigate a prisoner’s complaints simply does not make an official liable
for damages under § 1983.

See George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007)

(“Only persons who cause or participate in the violations are responsible.”). The official must
have personally participated in the constitutional deprivation. The complaint does not suggest
that Defendant Quigley had any personal involvement in the August 2013 incident.
Therefore, Count 4 fails to state a claim upon which relief may be granted and shall be
dismissed with prejudice.
Pending Motions
Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2) shall be addressed in a
separate Order of this Court.
Plaintiff’s motion to appoint counsel (Doc. 3) shall be referred to United States
Magistrate Judge Philip M. Frazier for further consideration.
Plaintiff’s motion to pay my fees (Doc. 6) is hereby DENIED. In the motion, Plaintiff
asks the Court to “bill [his] prison account” for the cost of filing this action. The Court cannot

8

“bill” his prison account in the manner he requests. Plaintiff has two options. He can either pay
the full filing fee of $400.00 or file a motion for leave to proceed in forma pauperis
(“IFP Motion”).

The Court notes that Plaintiff has already filed an IFP Motion.

However, before the Court can decide this motion, Plaintiff must provide the Court with a
certified copy of his Trust Fund Account Statement (or institutional equivalent) for the period
11/1/2013 to 5/21/14, on or before July 14, 2014. The Court previously advised Plaintiff of this
obligation in an Order (Doc. 5) entered on May 28, 2014, and warned him that his failure to
provide this information will result in dismissal of this action for failure to comply with an Order
of this Court under Federal Rule of Civil Procedure 41(b). See generally Ladien v. Astrachan,
128 F.3d 1051 (7th Cir. 1997); Johnson v. Kaminga, 34 F.3d 466 (7th Cir. 1994).
Disposition
IT IS HEREBY ORDERED that COUNT 3 is DISMISSED without prejudice from
this action for failure to state a claim upon which relief can be granted.

COUNT 4 is

DISMISSED with prejudice for failure to state a claim for relief.
IT

IS

FURTHER

ORDERED

that

Defendants

SHAWNEE’S

WARDEN,

LT. QUIGLEY, and INTERNAL AFFAIRS OFFICER DOE are DISMISSED without
prejudice.
As

to

COUNTS

1

and

2,

the

Clerk

of

Court

shall

prepare

for

Defendants SERGEANT FOLSOM and C/O DEEN: (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

9

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 formal
service, to the extent authorized by the Federal Rules of Civil Procedure.
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.
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 Philip M. Frazier for further pre-trial proceedings, including a decision on Plaintiff’s
motion to appoint Frazier for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C.
§ 636(c), if all parties consent to such a referral.
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

10

his application to proceed in forma pauperis has not yet been granted.

See 28 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: June 18, 2014
s/J. Phil Gilbert
U.S. District Judge

11