Tolentino v. Butler et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge Staci M. Yandle on 3/18/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EDWIN E. TOLENTINO, # K-84528,
Plaintiff,
vs.
KIMBERLY BUTLER,
RICK HARRINGTON,
JEANETT C. HECHT,
M. BAKER,
K. REICHERT,
and UNKNOWN PARTY,
Defendants.

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Case No. 15-cv-196-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff, currently incarcerated at Menard Correctional Center (“Menard”), has brought
this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving a 48-year
sentence for attempted murder as well as two 20-year sentences and a seven-year sentence for
other offenses. He claims that several officers used excessive force against him, and he was then
denied medical care for his injuries.
The incident which gave rise to this claim dates back to March 14, 2013. On that day,
Plaintiff was handcuffed and escorted from his cell to the chapel by two unnamed “tact officers”
(Doc. 1, p. 5). One of them placed his hand on the back of Plaintiff’s head and jerked it
downward, causing severe pain. The two officers then slammed Plaintiff on top of a food crate,
and punched him in his legs and body, causing him to lose his breath.
After this assault, Defendant Officer Baker took Plaintiff to segregation.

Plaintiff

remarked to him, “I hate those officers for what they did to me.” Id. When Defendant Baker
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placed Plaintiff in the cell, he kicked Plaintiff in the thigh, causing him to drop to one knee.
Defendant Baker then grabbed Plaintiff by the hair and said, “Well, we hate you too[,] retard”
(Doc. 1, p. 5). Finally, Defendant Baker kicked Plaintiff on the back, causing severe pain and
damaging his spinal cord.
Plaintiff told Defendant Reichert that he needed medical attention because of the assaults,
but apparently nothing was done. Plaintiff also claims that he advised all the other named parties
about the officers’ assaults on him.
Plaintiff was transferred from Menard to Lawrence Correctional Center on the same day
as these incidents (Doc. 1, pp. 7, 9). Upon his arrival at Lawrence, he again asked for medical
care, but none was provided.
Over a year later, on April 23, 2014, Plaintiff was transferred back to Menard.
Defendants Butler (current Menard Warden), Hecht (Intel Unit), and Reichert (Internal Affairs),
all knew about the assaults committed by Defendant Baker and the Unknown Officers. He
asserts that all of the Defendants violated his constitutional rights.
As relief, Plaintiff requests a transfer away from Menard because Defendant Baker is
“still harassing” him (Doc. 1, p. 6). Further, he seeks a court order for an MRI to be performed
on his back/spinal cord. Finally, he wants the Defendants to be fired or suspended without pay.
He does not include a request for money damages.
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the
complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief from an immune defendant.
Based on the allegations of the complaint, the Court finds it convenient to divide the pro

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se action into the following counts. 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. The
designation of these counts does not constitute an opinion as to their merit.
Count 1: 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 2: Eighth Amendment claim for deliberate indifference to medical needs
against Defendant Reichert, Defendant Baker, and the Unknown (John Doe)
Tactical Officers, for failing to obtain medical care for Plaintiff following the
assault described in Count 1.
Plaintiff has failed to state a claim upon which relief may be granted against Defendants
Butler, Harrington, and Hecht. Because Plaintiff has requested injunctive relief, Defendant
Butler shall remain in the action in her official capacity only in connection with that request. All
individual-capacity claims against Defendant Butler shall be dismissed. Defendants Harrington
and Hecht shall also be dismissed from the action.
Count 1 – Excessive Force
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). 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, 559 U.S. at 40 (citing Hudson v. McMillian, 503 U.S. 1,
6 (1992)). An inmate seeking redress 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.” Wilkins, 559 U.S. at 37-38 (the question is whether force was de

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minimis, not whether the injury suffered was de minimis); see also Outlaw v. Newkirk, 259 F.3d
833, 837-38 (7th Cir. 2001).
Plaintiff maintains that he offered no resistance, and indeed was handcuffed behind his
back during the assaults by the Unknown Defendant Officers and Defendant Baker.

The

complaint thus states an excessive force claim against these Defendants that merits further
review.
However, Plaintiff does not allege that any of the other Defendants participated in
assaulting him, or were even present during the incidents. He indicates that he advised the other
parties of what happened, after the assaults occurred. Informing a warden or other official of a
constitutional violation after the fact does not result in liability. Section 1983 creates a cause of
action based on personal liability and predicated upon fault; thus, “to be liable under § 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). Similarly, there is no
supervisory liability in a civil rights action.

A warden cannot be held liable for the

unconstitutional acts of subordinate prison employees, merely because of her supervisory role.
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (the doctrine of respondeat superior
is not applicable to § 1983 actions). The complaint therefore states no claim against Defendants
Butler, Harrington, Hecht, or Reichert in connection with either incident of excessive force.
Count 1 shall proceed only against Defendant Baker and the Unknown Defendant
Tactical Officers. Plaintiff shall note that those unknown parties cannot be served until he
identifies them by name.

Count 1 is dismissed with prejudice as to Defendants Butler,

Harrington, Hecht, and Reichert.

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Count 2 – Denial of Medical Care
Plaintiff states that he requested medical assistance from Defendant Reichert for the
injuries he sustained as a result of the attacks described in Count 1. However, Defendant
Reichert did not summon medical personnel. Plaintiff continued to seek medical care after his
transfer to Lawrence, but was ignored. He does not name any Lawrence officials among the
Defendants.
In order to state a claim for deliberate indifference to a serious medical need, an inmate
must show that he (1) suffered from an objectively serious medical condition; and (2) that the
defendant was deliberately indifferent to a risk of serious harm from that condition. “Deliberate
indifference is proven by demonstrating that a prison official knows of a substantial risk of harm
to an inmate and either acts or fails to act in disregard of that risk. Delaying treatment may
constitute deliberate indifference if such delay exacerbated the injury or unnecessarily prolonged
an inmate’s pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (internal citations and
quotations omitted). See also Farmer v. Brennan, 511 U.S. 825, 842 (1994). A “serious”
medical need or injury includes a condition that is “so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention,” or a condition where failure to render
treatment could “result in further significant injury or the unnecessary and wanton infliction of
pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
From Plaintiff’s description, his injuries and pain constituted objectively serious medical
conditions. Because Plaintiff indicates that he told Defendant Reichert of his injuries from the
blows inflicted on him by Defendant Baker and the Unknown Officers, and asked for treatment,
he has stated a cognizable deliberate indifference claim for this failure to act. Count 2 shall
therefore proceed against Defendant Reichert.

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As to the lack of medical treatment at Lawrence Correctional Center, the complaint falls
short of stating an actionable claim. If Plaintiff wishes to assert a deliberate indifference claim
against any Lawrence officials, he must identify the individuals who failed to provide care
despite their knowledge of Plaintiff’s injuries, and include sufficient facts to support a claim
against them. He may submit a proper amended complaint in this action, in compliance with
Rule 15 and Local Rule 15-1.
Count 2 may also proceed against the Defendants who inflicted the injuries upon
Plaintiff. The Seventh Circuit has held that a guard who uses excessive force on a prisoner has
“a duty of prompt attention to any medical need to which the beating might give rise[.]” Cooper
v. Casey, 97 F.3d 914, 917 (7th Cir. 1996). Thus, Defendant Baker and the Unknown Tactical
Officers, who perpetrated the assaults and then did nothing to secure medical attention for
Plaintiff’s injuries, may be found liable for deliberate indifference to Plaintiff’s need for medical
care. At this stage, it cannot be determined whether the actions of these Defendants resulted in
Plaintiff being denied medical care or otherwise constituted deliberate indifference to Plaintiff’s
serious medical needs. Therefore, Plaintiff’s claim in Count 2 against Defendant Baker and the
Unknown Defendant Tactical Officers may also proceed for further review.
Finally, Plaintiff does not state that he requested any of the other Defendants to help him
get medical care, or that they failed to do so despite their knowledge that Plaintiff was at risk of
harm from his injuries. Accordingly, he fails to state a deliberate indifference claim against
Defendants Butler, Harrington, or Hecht. Defendants Harrington and Hecht are thus dismissed
from Count 2 without prejudice. The individual-capacity claim against Defendant Butler is also
dismissed without prejudice.
To summarize, Count 2 shall proceed only against Defendants Reichert, Baker, and the

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Unknown Defendant Tactical Officers.
Defendant Butler shall remain in the action, in her official capacity only. As such,
discovery requests regarding the identity of the unknown parties may be directed to her. Further,
in the event that injunctive relief is ordered, she is the appropriate party to implement it. See
Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (proper defendant in a claim for
injunctive relief is the government official responsible for ensuring any injunctive relief is
carried out).
Pending Motion
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to the United
States Magistrate Judge for further consideration.
Disposition
The claims in Count 1 against Defendants Harrington, Butler, and Hecht are dismissed
with prejudice. Defendants HARRINGTON and HECHT are DISMISSED from Count 2 and
from this action without prejudice. The individual-capacity claims against Defendant BUTLER
in Count 2 are dismissed without prejudice; she remains in the action in her official capacity
only.
The Clerk of Court shall prepare for Defendants BUTLER, BAKER, and REICHERT:
(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

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Defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of
Civil Procedure.
Service shall not be made on the Unknown (John Doe) Tactical Officer Defendants until
such time as Plaintiff has identified them by name in a properly filed amended complaint.
Plaintiff is ADVISED that it is Plaintiff’s responsibility to provide the Court with the names and
service addresses for these individuals.
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, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3).

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Further, this entire matter shall be REFERRED to United States Magistrate Judge
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
his application to proceed in forma pauperis has 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: March 18, 2015

s/ STACI M. YANDLE
United States District Judge

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