Tolentino v. Butler et al

Filing 161

ORDER: The Motion for Summary Judgment filed by Defendants Baker, Lashbrook, Hecht, and Reichert (Doc. 138 ) is GRANTED in part and DENIED in part. At the conclusion of this case, the Clerk of Court SHALL ENTER JUDGMENT against Plaintiff Edwin Tole ntino and in favor of Defendants Hecht and Reichert. Plaintiff shall proceed in this action on Count One, a claim of excessive force against Defendant Baker. Defendant Lashbrook remains a defendant for the purposes of carrying out injunctive relief, if ordered. The unknown tactical officers are DISMISSED WITH PREJUDICE. Signed by Judge Staci M. Yandle on 5/2/2018. (mah)

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

EDWIN E. TOLENTINO,
Plaintiff,
vs.
JACQUELINE LASHBROOK,
JEANETTE C. HECHT, MICHAEL
BAKER, KEVIN REICHERT, and
UNKNOWN PARTY,
Defendants.

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Case No. 15-CV-196-SMY-RJD

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Edwin Tolentino, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983, alleging his constitutional
rights were violated while he was incarcerated at Menard Correctional Center (“Menard”).
Specifically, Tolentino alleges that correctional officers used excessive force against him and
that he was subsequently denied medical care for the injuries the officers inflicted. Tolentino is
proceeding on the following claims:
Count One:

Eighth Amendment excessive force claim against Defendant Baker and
the Unknown (John Doe) Tactical Officers for jerking, slamming,
punching, kicking, and grabbing Plaintiff on March 14, 2013.

Count Two:

Eighth Amendment claim for deliberate indifference to medical needs
against Defendant Reichert, Defendant Baker, Defendant Hecht, and the
Unknown (John Doe) Tactical Officers, for failing to obtain medical care
for Plaintiff following the assault described in Count One.

Defendant Lashbrook is named as a defendant only in her official capacity for purposes
of providing injunctive relief, if awarded. In the Court’s Screening Order, Plaintiff was advised
that service would not be made on the unknown (John Doe) tactical officer defendants until he

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identified them by name in a properly filed amended complaint (Doc. 6). On June 23, 2015, the
Court entered a Scheduling and Discovery Order giving Plaintiff until August 28, 2015 to seek
leave to amend his Complaint to name the unknown parties (see Doc. 28). As of the date of this
Order, Plaintiff has failed to identify the unknown tactical officers. Accordingly, the Court finds
that Plaintiff has failed to prosecute his case against the unknown tactical officers and they are
DISMISSED WITH PRJEUDICE pursuant to Rule 41(b) of the Federal Rules of Civil
procedure.
The remaining defendants, Baker, Hecht, Reichert, and Lashbrook, filed a Motion for
Summary Judgment (Doc. 138) that is now before the Court. Plaintiff filed a timely response
(Doc. 143).

For the following reasons, Defendants’ Motion is GRANTED in part and

DENIED in part.
Background
The following facts are taken from Plaintiff’s deposition unless noted otherwise. While
being escorted to the chapel on March 14, 2013, Orange Crush Tactical members punched,
kneed, and kicked Tolentino (Deposition of Edwin Tolentino, Doc. 139-1, p. 4). After arriving
at the chapel and providing his name to the Orange Crush officers, Tolentino was taken to a
shower in the segregation unit (Id.). Defendant Baker came to escort Tolentino to his cell (Id.).
Tolentino told Baker that he hated what the officers had done to him, to which Baker stated “we
hate you too, retard” (Id.). Once they arrived at Tolentino’s cell, Baker kicked him in his upper
left leg, causing Tolentino to drop to one knee (Id.). Baker also grabbed Tolentino’s hair and
kicked him in his back (Id. at 4-5). After Baker kicked him, Tolentino told him he would
“whoop [his] ass” (Doc. 139-1 at 5). Tolentino requested medical attention, but Baker ignored
him and walked away (Id. at 8-9).

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Soon after his altercation with Baker, Tolentino was taken to internal affairs and
interviewed by Defendant Reichert (Id. at 9).

Reichert asked Tolentino about what he said to

Baker and asked if he knew anything about a recent staff assault in the chapel (Id.). Tolentino
denied knowing anything about the chapel incident, but told Reichert that he had been assaulted
by Baker and suffered injuries to his legs and back (Id.). Tolentino also requested medical
attention (Id.). Reichert did not take any action to address Tolentino’s request for medical care
(Id. at 9-10).
After speaking with Reichert, Tolentino was waiting in the bullpen to be transferred to
Lawrence Correctional Center (“Lawrence”) when Defendant Hecht approached him (Id. at 10).
Hecht asked Tolentino what happened. He explained that Baker had assaulted him and that he
needed medical attention for the injuries he sustained to his back and legs (Id.). Hecht responded
by saying “too bad” and told Tolentino she was not a doctor (Id. at 11).
Soon thereafter, Hecht issued a disciplinary report against Tolentino for “Dangerous
Disturbances,” “Gang or Unauthorized Organization Activity,” and “Intimidation/Threats”
related to his interaction with Baker (see Doc. 139-2 at 5). In her disciplinary report, Hecht
indicated that while Baker was removing Tolentino’s restraints, Tolentino stated “when I get out
of here, the Folks are going to whip that ass,” and that he also made reference to a staff assault
that took place in the chapel about a month prior (Id.). Tolentino was later found guilty of the
offenses and was punished with six months of segregation, C Grade, and commissary restriction,
and one month good conduct revocation (Doc. 139-1 at 6; see Doc. 139-2 at 3-4).
Around 3:00 p.m. on March 14, 2013, Tolentino was examined by a nurse at Menard
prior to his transfer to Lawrence (Doc. 139-1 at 12; see Doc. 139-3 at 1). No current or acute
conditions were noted on his Offender Health Status Transfer Summary, however Tolentino

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attests that he told the nurse that he had a back injury and was in pain (Doc. 143-1 at 31; see 1393 at 1).
Tolentino underwent another health screening with a nurse when he arrived at Lawrence
around 8:00 p.m. on March 14, 2013 (Doc. 139-1 at 12; see Doc. 139-3 at 2). He informed the
nurse that he had suffered a back injury. However, his Health Status Transfer Summary only
notes that he indicated subjective complaints of bruising and pain on his left upper thigh and ribs
(Doc. 139-1 at 12; see doc. 139-3 at 2). The transfer summary also indicates that Tolentino
refused treatment, but he denies that he ever refused any treatment (Doc. 139-1 at 12; see Doc.
139-3 at 2).
During a visit to nurse sick call on April 3, 2013, Tolentino complained of leg pain and
radiating lower back pain when exercising (see Doc. 139-4 at 4). He was issued Tylenol and
advised to use hot and cold packs (Id.; see Doc. 139-1 at 14). Tolentino’s medical records reflect
that he complained about leg and back pain on one more occasion – during a May 2, 2013
medical visit (Id. at 13; see Doc. 139-4 at 5). He was provided with an order for Naproxen and
directed to follow up if his problems continued (see id.).
Tolentino asked for an MRI of his back on some occasions, but his requests were denied
(Doc. 139-1 at 13). There is no documentation of a request for an MRI in Tolentino’s medical
records. Nor is there any indication in the medical records that he complained of back pain after
his May 2, 2013 appointment. Nevertheless, Tolentino claims that he suffered a permanent
injury to his lower spinal cord that feels like “squishing a nerve” and causes him to stay stuck in
one place for a long time (Id. at 6).
Discussion
Summary judgment is appropriate only if the moving party can demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

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law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also RuffinThompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The
moving party bears the initial burden of demonstrating the lack of any genuine issue of material
fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is
made, the adverse party “must set forth specific facts showing there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact
exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477
U.S. at 248). When deciding a summary judgment motion, the district court views the facts in
the light most favorable to, and draws all reasonable inferences in favor of, the nonmoving party.
Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).
Count One - Eighth Amendment excessive force claim against Defendant Baker
The Eighth Amendment’s cruel and unusual punishments clause prohibits the
“unnecessary and wanton infliction of pain” on prisoners. Outlaw v. Newkirk, 259 F.3d 833, 837
(7th Cir. 2001) (quoting Hudson v. McMillian, 503 U.S. 1, 5 (1992)). “In cases involving the
claimed use of excessive force, ‘the core judicial inquiry’ is ‘whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause
harm’.” Outlaw, 259 F.3d at 837 (quoting Hudson, 503 U.S. at 7). “In conducting this inquiry, a
court must examine a variety of factors, including ‘the need for an application of force, the
relationship between that need and the force applied, the threat reasonably perceived by the
responsible officers, the efforts made to temper the severity of the force employed, and the extent
of the injury suffered by the prisoner.’” Id. A plaintiff need not demonstrate a significant injury
to state a claim for excessive force. However, “a claim ordinarily cannot be predicated on a de

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minimis use of physical force.” DeWalt v. Carter, 224 F.3d 607, 620 (7th Cir. 2000) (emphasis
added) (citing Hudson, 503 U.S. at 5).
Here, Tolentino contends that Baker used excessive force against him on March 14, 2013.
Tolentino testified that after Baker escorted him to his cell in the segregation unit, Baker kicked
him once in the leg and once in the back, and pulled his hair. While Tolentino admits he made
threatening remarks to Baker, he maintains that he did not make any threatening remarks prior to
Baker kicking him.
Tolentino complained of back and leg pain shortly after the incident and saw a medical
provider on two subsequent occasions (April 3, 2013 and May 2, 2013) for leg and back pain.
Baker argues he is entitled to judgment as a matter of law as there is no evidence Tolentino
suffered a serious injury and any alleged use of force was necessary to restore discipline in
response to Tolentino’s verbalized threats.
If Tolentino’s testimony is credited, as it must be for purposes of the instant motion, then
Baker’s arguments fail. As previously noted, the question before the Court is whether the force
was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm. See Outlaw, 259 F.3d at 837.

Although Tolentino admits he

threatened Baker, he claims the threats came only after Baker kicked him. Further, there is no
evidence in the record that Tolentino was not cooperating with Baker that would justify his use
of force.
The Court also disagrees that as a matter of law, the force applied was minor because
Tolentino’s medical records fail to evidence a significant injury. A significant injury is not a
prerequisite for an excessive force claim and, in the absence of evidence that the force used by
Baker was applied to maintain or restore discipline, a reasonable jury could find that the

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application of force was excessive. See Wilkins v. Gaddy, 559 U.S. 34, 36 (2010). For these
reasons, Defendant Baker is not entitled to summary judgment as to Count One. 1
Count Two – Eighth Amendment claim for deliberate indifference to medical needs
Deliberate indifference to serious medical needs of prisoners may constitute cruel and
unusual punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976).
In order to prevail on such a claim, a plaintiff must first show that his condition was “objectively,
sufficiently serious” and second, that the “prison officials acted with a sufficiently culpable state
of mind.” Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005) (citations and quotation marks
omitted).
On the record before the Court, Tolentino’s leg and back injury do not qualify as
objectively serious medical conditions. Not “every ache and pain or medically recognized
condition involving some discomfort can support an Eighth Amendment claim.” Gutierrez v.
Peters, 111 F.3d 1364, 1372 (7th Cir. 1997); see also Cooper v. Casey, 97 F.3d 914, 916 (7th
Cir. 1996) (explaining that “minor aches and pains” do not rise to the level of a serious medical
condition). A serious medical need is indicated by “[t]he existence of an injury that a reasonable
doctor or patient would find important and worthy of comment or treatment; the presence of a
medical condition that significantly affects an individual’s daily activities; or the existence of
chronic and substantial pain.” Hayes v. Snyder, 546 F.3d 516, 522-23 (7th Cir. 2008) (quoting
Gutierrez, 111 F.3d at 1373); see also Foelker v. Outagamie Cnty., 394 F.3d 510, 512-13 (7th
Cir. 2005) (“A 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.”).

1

Baker is also not entitled to qualified immunity on this claim as it was the law was clearly established at the time of
the events in question that applying force in a manner inconsistent with maintaining or restoring discipline
implicates an inmate’s constitutional rights.

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Tolentino was twice examined by medical personnel concerning complaints of back and
leg pain. No significant medical intervention was required and his condition was managed with
over-the-counter pain medication and hot and cold packs. Although his injuries may have been
uncomfortable, the record does not establish that Tolentino suffered an objectively serious
medical condition. Indeed, Tolentino was exercising within two weeks of allegedly sustaining
his injuries.

On these facts, there is no viable deliberate indifference claim for a jury’s

consideration and Defendants Baker, Hecht, and Reichert are entitled to summary judgment as to
Count Two 2.
Conclusion
For the reasons stated above, the Motion for Summary Judgment filed by Defendants
Baker, Lashbrook, Hecht, and Kevin Reichert (Doc. 138) is GRANTED in part and DENIED
in part. At the conclusion of this case, the Clerk of Court SHALL ENTER JUDGMENT
against Plaintiff Edwin Tolentino and in favor of Defendants Jeanette Hecht and Kevin Reichert.
Plaintiff shall proceed in this action on Count One, a claim of excessive force against Defendant
Baker. Defendant Lashbrook remains a defendant for the purposes of carrying out injunctive
relief, if ordered. The unknown tactical officers are DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.
DATED: May 2, 2018
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

2

The Court need not consider Defendants’ qualified immunity argument as to Count Two because it finds that they
did not violate Plaintiff’s constitutional rights.

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