Gully v Watson et al

Filing 11

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. See attached order for details. Signed by Chief Judge Michael J. Reagan on 4/28/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONNIE GULLY, JR.,
Plaintiff,
vs.
RICHARD WATSON,
THOMAS TRICE,
NANCY SUTHERLIN,
SHANE COLLINS,
KARL PANNIER,
ANTHONY LEFLOORE,
TERRY OWENS,
JOHN MILLER,
PHILLIP MCLAURIN, and
STEVEN STRUBBERG,
Defendants.

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Case No. 15-cv-00276-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Ronnie Gully, Jr., is a detainee 1 currently housed in the St. Clair County Jail.
Pursuant to 42 U.S.C. § 1983, Plaintiff brings this action for deprivations of his constitutional
rights with respect to several incidents involving his physical safety and medical care.
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A. 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). Frivolousness is an objective standard that refers
1

Various official prison documents attached to the complaint describe Plaintiff as a “detainee,”
so the Court will presume he is a pretrial detainee and has not been convicted of a crime.
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to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). 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. At this juncture, the factual
allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Complaint
The “complaint” is a multipart document including a “Statement of Claims” (Doc. 1-3,
pp. 9-10), and a separate compendium for each of the two enumerated claims, each containing a
list of the defendants Plaintiff associates with each claim, a memorandum of law, documentary
exhibits and a witness list. 2 Each claim will be laid out in turn, but the Court will designate the
claims as “counts.”
Count 1
According to the complaint (Doc. 1-3, p. 9), in March 2014 a nurse, accompanied by a
guard, delivered medication to Plaintiff. After Plaintiff took the medicine, the guard, C/O
Anthony Lefloore, physically assaulted Plaintiff without provocation, hitting him in the face and
head. Officers Shane Collins and John Miller arrived and Collins joined Lefloore in beating
Plaintiff. Lefloore also struck Plaintiff’s head with a flashlight. Plaintiff, his head bleeding, was
then handcuffed and beaten some more by the guards. Lefloore, Collins and Miller later escorted
Plaintiff to the healthcare unit for treatment.
2

The electronically filed complaint is a bit jumbled, but the parts are labeled and easily sorted.
The complaint is comprised of Doc. 1, pp. 1-6; Doc. 1-3, pp. 9-13. The compendium relative to
“Claim #1” is Doc. 1, pp. 7-25; Doc. 1-1, pp. 1-25. The compendium associated with “Claim
#2” is Doc. 1-1, pp. 23-25; Doc. 1-2, pp. 1-30; Doc. 1-3, pp. 1-8.
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Plaintiff was later returned to his cell—by whom is unknown. He was placed on suicide
watch, although he was not suicidal. As a result, Plaintiff’s property was removed from his cell
and he was left to sleep without a mattress, wearing only a “suicide gown.” After 30 or 40
minutes, Plaintiff was found lying unconscious on the floor in a pool of urine and saliva.
Listed as defendants to Count 1 are: Jail Assistant Superintendent/Captain Thomas Trice;
Sheriff Richard Watson, who is described as the “owner” of the Jail; Jail Superintendent Phillip
McLaurin; C/O Shane Collins; C/O Anthony Lefloore; C/O John Miller; and Shift
Superintendent Karl Pannier.
Plaintiff requests injunctive relief (the installation of video cameras), as well as
compensatory and punitive damages.
The Court summarizes these allegations in the following overarching claim:
Count 1: Defendants Trice, Watson, McLaurin, Collins, Lefloore, Miller
and Pannier submitted Plaintiff to excessive force and harsh
conditions of confinement, all in violation of the Fourteenth
Amendment.
Count 2
In August 2014, Plaintiff was in a dispute with another detainee, Dominic Hood, who
threatened to throw urine on him. Plaintiff told C/O Terry Owens about the threat, but Owens
still granted Hood’s subsequent request to go to the recreation area, which would entail passing
by Plaintiff.

Hood was handcuffed, but allowed to carry a cup filled with Magic Shave,

powdered bleach, urine and a cleaning solution.

As Hood passed Plaintiff, he threw the

concoction in Plaintiff’s face. Plaintiff screamed as the mixture burned his eyes and skin.
Captain Thomas Trice, Supervisor Nancy Sutherlin and Sergeant Steven Strubberg all
arrived on the scene. Plaintiff asked to see a nurse, but was sent back to his cell. Plaintiff
developed a rash on his face and neck. Adding insult to injury, guards laughed and mocked him.
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Named as defendants to Count 2 are: Sheriff and “owner” of the Jail, Richard Watson;
Jail Superintendent Phillip McLauren; Assistant Superintendent/Captain Thomas Trice;
Supervisor Nancy Sutherlin; C/O Timothy Owens; and Sergeant Steven Strubberg. Plaintiff
seeks declaratory judgment; injunctive relief (installation of cameras, and the general provision
of medical care); and nominal, compensatory and punitive damages.
The Court summarizes these allegations in the following overarching claim:
Count 2: Defendants Watson, McLaurin, Trice, Sutherlin, Owens and
Strubberg failed to protect Plaintiff from harm and failed to get
him medical care, all in violation of the Fourteenth Amendment.
Discussion
The complaint is essentially a prepackaged lawsuit, from complaint to summary
judgment memoranda, to exhibits and witness lists. Nevertheless, at this stage in the proceedings
the Court’s review is limited to evaluating the viability of the claims presented in the complaint
(Doc. 1-3, pp. 9-10). 3
Claims concerning the conditions of confinement of civil detainees are
assessed under the due process clause of the Fourteenth Amendment. See West v.
Schwebke, 333 F.3d 745, 747–48 (7th Cir. 2003). Civil detainees “are entitled to
more considerate treatment and conditions of confinement than criminals whose
conditions of confinement are designed to punish.” Youngberg v. Romeo, 457
U.S. 307, 321–22, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). But the Supreme Court
has not determined how much additional protection civil detainees are entitled to
beyond the protections afforded by the Eighth Amendment bar on cruel and
unusual punishment.
McGee v. Adams, 721 F.3d 474, 480 (7th Cir. 2013); see also Currie v. Chhabra, 728 F.3d 626,
629 (7th Cir. 2013) (regarding criminal detainees). Because the protection afforded under both
Amendments is virtually identical, the Court will also refer to and cite Eighth Amendment case
law. See Smith v. Sangamon County Sheriff's Dept., 715 F.3d 188, 191 (7th Cir. 2013).
3

The Court will analyze Plaintiff’s claims as presented by Plaintiff, and will not comb through
the memoranda and supplemental documents to fashion more complete or expansive claims.
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Count 1
The Due Process Clause of the Fourteenth Amendment prohibits conditions of
confinement for pretrial detainees that amount to punishment. Board v. Farnham, 394 F.3d 469,
477 (7th Cir. 2005). Similarly, the Eighth Amendment to the United States Constitution protects
convicted prisoners from being subjected to cruel and unusual punishment. See also Berry v.
Peterman, 604 F.3d 435, 439 (7th Cir. 2010). When prison officials are accused of using
excessive force against an inmate, “[t]he claimant must show that officials applied force
‘maliciously and sadistically for the very purpose of causing harm.’” Farmer v. Brennan, 511
U.S. 825, 835 (1994) (quoting Hudson v. McMillian, 503 U.S.1, 6 (1992)). These constitutional
protections also extend to conditions posing a substantial risk of serious harm to health and
safety. See Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984 (7th Cir. 2012).
The alleged unprovoked assault upon Plaintiff by Officers Lefloore, Collins and Miller is
an adequate basis for a Fourteenth Amendment “excessive force” claim. The allegations that
Plaintiff was intentionally placed on a suicide watch and subjected to harsher conditions of
confinement also fall within the ambit of the Fourteenth Amendment. However, the implication
that Plaintiff did not receive proper medical care (because he returned to his cell and passed out)
is far too vague to meet the Twombly pleading standard. Still, additional analysis is warranted.
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). “Supervisory liability will be found … if the supervisor, with knowledge of the

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subordinate’s conduct, approves of the conduct and the basis for it.” Lanigan v. Village of East
Hazel Crest, Ill., 110 F.3d 467, 477 (7th Cir. 1997); Chavez v. Illinois State Police, 251 F.3d
612, 651 (7th Cir. 2001). See also Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 615 (7th
Cir. 2002) (allegations that an agency’s senior officials were personally responsible for creating
the policies, practices and customs that caused the constitutional deprivations suffice to
demonstrate personal involvement).
The complaint sufficiently alleges personal involvement by Defendants Officers
Lefloore, Collins and Miller relative to the alleged assault. That aspect of Count 1 shall proceed.
The other allegations in Count 1, and the other prison officials named as defendants to
Count 1, must be dismissed. The complaint fails to indicate who placed Plaintiff on suicide
watch and in a strip cell. The list of defendants to Count 1 includes Shift Supervisor Karl
Pannier, who is described as failing to prevent or stop the abuse, and having “signed off” on the
false report that Plaintiff was suicidal (Doc. 1, p. 7). The Court’s review, however, is limited to
the claims as framed by Plaintiff, not information scattered elsewhere throughout the 93-page
complaint. There are no allegations regarding Assistant Superintendent Thomas Trice, Sheriff
Richard Watson or Superintendent Phillip McLaurin. Furthermore, as already explained, those
officials cannot be held liable merely because of their supervisory positions. Consequently,
Pannier, Trice, Watson and McLaurin must all be dismissed. Dismissal of the insufficiently
pleaded aspects of Count 1 and defendants Pannier, Trice, Watson and McLaurin will be without
prejudice.
Count 2
The Fourteenth and Eighth Amendments obligate prison officials to protect prisoners
from known substantial risks to their safety, including violent assaults by fellow prisoners. Smith

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v. Sangamon County Sheriff’s Dept., 715 F.3d 188, 191 (7th Cir. 2013).

A prisoner’s safety is

not guaranteed; liability will attach only where the defendant official was aware of a substantial
risk of serious injury but failed to take appropriate steps to protect the prisoner. Id.
The complaint states a colorable claim regarding Terry Owens knowing that inmate Hood
posed a threat to Plaintiff but still permitting Hood to pass by Plaintiff carrying a cup of liquid.
A viable claim is also stated against Thomas Trice, Nancy Sutherlin and Stacy Strubberg, who
purportedly denied Plaintiff medical care. Those claims may proceed.
There are no allegations regarding Sheriff Richard Watson and Superintendent Phillip
McLaurin in the narrative underpinning Count 2. Again, officials cannot be held liable merely
because of their supervisory positions. Consequently, Watson and McLaurin will be dismissed
without prejudice.
Severance
The excessive force claim against Defendants Lefloore, Collins and Miller in Count 1,
although a viable constitutional claim, cannot proceed together in the same action with Count 2,
the failure to protect claim against Defendant Owens, and the related medical care claim against
Defendants Trice, Sutherlin and Strubberg.
Federal Rule of Civil Procedure 18 generally permits a party to join “as many claims as it
has against an opposing party.” FED.R.CIV.P. 18(a). “Thus multiple claims against a single
party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B
against Defendant 2.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). With that said, Rule
20 permits multiple defendants to be joined in a single action if: “(A) any right to relief is
asserted against them jointly, severally, or in the alternative with respect to or arising out of the
same transaction, occurrence, or series of transactions or occurrences; and (B) any question of

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law or fact common to all defendants will arise in the action.” FED.R.CIV.P. 20(a)(2)(A), (B).
In George v. Smith, 507 F.3d 605 (7th Cir. 2007), the Seventh Circuit emphasized that
unrelated claims against different defendants belong in separate lawsuits, “not only to prevent the
sort of morass” produced by multi-claim, multi-defendant suits “but also to ensure that prisoners
pay the required filing fees” under the Prison Litigation Reform Act (“PLRA”). Id. at 607,
(citing 28 U.S.C. § 1915(b), (g)). Otherwise, prisoners easily could sidestep the requirements of
the PLRA, in particular the provisions regarding filing fees. See id. Accordingly, severance is
appropriate under Federal Rule of Civil Procedure 21 as long as the two resulting claims are
“discrete and separate.” Rice v. Sunrise Express, 209 F.3d 1008, 1016 (7th Cir. 2000); see also
George, 507 F.3d at 607. In other words, one claim must be capable of resolution despite the
outcome of the other claim. Id.; see also Gaffney v. Riverboat Servs. of Indiana, Inc., 451 F.3d
424, 442 (7th Cir. 2006).
Counts 1 and 2 have no common defendants or claims; the incidents at issue occurred
five months apart and there is no common thread tying them together. Consistent with the
George decision and Federal Rule of Civil Procedure 21, the Court shall sever Counts 1 and 2 of
Plaintiff’s complaint, and shall open a new case with a newly-assigned case number for Count 2.
However, Plaintiff shall have an opportunity to voluntarily dismiss the newly severed case if he
does not wish to proceed on those claims or incur the additional filing fee.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, the allegations in Count 1 that
Plaintiff was intentionally placed on a suicide watch, subjected to harsher conditions of
confinement and that he did not receive proper medical care are DISMISSED without

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prejudice; Defendants Karl Pannier, Thomas Trice, Richard Watson and Phillip McLaurin
are all DISMISSED without prejudice from Count 1.
IT IS FURTHER ORDERED that the “excessive force” claim in Count 1 shall
PROCEED against Defendants Anthony Lefloore, Shane Collins and John Miller.
IT IS FURTHER ORDERED that Defendants Richard Watson and Phillip
McLaurin are DISMISSED without prejudice from Count 2.
IT IS FURTHER ORDERED that the “failure to protect” and ”medical care” claims in
Count 2 shall PROCEED against Defendants Thomas Trice, Nancy Sutherlin, Timothy
Owens and Steven Strubberg.
IT IS FURTHER ORDERED that Defendants Richard Watson, Karl Pannier and
Phillip McLauren are DISMISSED without prejudice from this action.
IT IS FURTHER ORDERED that Count 2 is SEVERED from this case and shall form
the basis of a new case brought against Defendants Thomas Trice, Nancy Sutherlin, Timothy
Owens and Steven Strubberg. The new case shall be randomly assigned to a district judge. In
the new case, the Clerk is DIRECTED to file the following documents:
(1)

This Memorandum and Order;

(2)

The Original Complaint (Doc. 1);

(3)

The Motion for Recruitment of Counsel (Doc. 3); and

(4)

The Motions for Service of Process at Government Expense (Docs. 4, 8).

IT IS FURTHER ORDERED that on or before April 30, 2015, Plaintiff shall notify
the Court in writing whether he wants to (1) proceed with the new case and incur another filing
fee, or (2) voluntarily dismiss the new case, in which case no additional filing fee will be
assessed. If Plaintiff elects to proceed with the new case he must also either submit the $400

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filing fee in full, or file a motion for leave to proceed in forma pauperis in the new case
(accompanied by the required financial affidavit and certified trust fund account).
IT IS FURTHER ORDERED that with respect to the present case, Plaintiff has been
granted pauper status; accordingly, Plaintiff’s motions for service of summons at government
expense (Docs. 4, 8) are GRANTED.
The Clerk of Court shall prepare for Defendants Anthony Lefloore, Shane Collins and
John Miller: (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 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

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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 Anthony Lefloore, Shane Collins and John Miller 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 Steven C. Williams for further pre-trial proceedings, including consideration
of Plaintiff’s motion for counsel (Doc. 3).
Further, this case shall be REFERRED to a United States Magistrate 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 Section 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.
SDIL Local Rule 3.1(c)(1).

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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: April 28, 2015
s/ Michael J. Reagan
MICHAEL J. REAGAN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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