Bandala-Martinez v. Fry et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 8/11/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
VICTOR BANDALA-MARTINEZ,
Plaintiff,
vs.
CORY FRY,
N. BEBOUT,
SGT. EOVALDI,
DAVID DAVIS,
C/O ELLETT, and
UNKNOWN PARTIES,
Defendants.

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Case No. 3:15-cv-00752-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Victor Bandala-Martinez is currently incarcerated at the Lawrence Correctional
Center in Sumner, Illinois, but was previously incarcerated at the Menard Correctional Center in
Menard, Illinois. (Doc. 1 at 1.) Proceeding pro se, Martinez has filed a civil rights action
pursuant to 42 U.S.C. § 1983, alleging that a number of prison officials engaged in excessive
force against him at several points on August 14, 2013, failed to protect him during those
excessive force incidents, and failed to treat the injuries he sustained during those excessive
force incidents. (Id. at 1-2.) Martinez seeks compensatory and punitive damages. (Id. at 16-17.)
This matter is now before the Court for a preliminary review of Martinez’s complaint
pursuant to 28 U.S.C. § 1915A. Under 28 U.S.C. § 1915A, the Court shall review a “complaint
in a civil action in which a prisoner seeks redress from a governmental entity or officer or
employee of a government entity.” During this preliminary review, the court “shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint,” if the complaint “is
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frivolous, malicious, or fails to state a claim on which relief may be granted” or if it “seeks
monetary relief from a defendant who is immune from such relief.”
Background
As of August 14, 2013, Martinez was housed at the Menard Correctional Center in the
North Two building. (Doc. 1 at 3-4.) At around 4:20 PM that day, Martinez exited his assigned
cell for the prison cafeteria. (Id. at 4.) On his way to dinner, Corrections Officer Fry confronted
Martinez and demanded to see his identification card. (Id.) While Martinez was attempting to
fish out his card, Fry allegedly became “extremely aggressive” and called Martinez “fucking
stupid,” a “fucking moron,” and a “dumb Mexican.” (Id.) Martinez then says that a “physical
altercation” occurred between the two of them, and Eovaldi, Bebout, and Davis arrived to assist
Fry in handcuffing Martinez. (Id.) Once handcuffed, the officers forced Martinez to the ground
and chained him so tightly that the chain “cut through his skin,” causing “extreme and
tormenting pain.” (Id. at 5.) Once Fry, Eovaldi, Bebout, and Davis had Martinez secured on the
ground in handcuffs, they punched, kicked, elbowed, kneed, and stomped their combat boots on
his face, head, neck, chest, ribs, back and arms – purportedly without “any provocation.” (Id.)
After allegedly attacking Martinez, Fry and other unknown corrections officers
“violently” picked Martinez up by his handcuffs and chains. (Id.) Martinez was then dragged by
Fry and the unknown officers down a hallway and thrown into a breakroom. (Id.) Once
Martinez was in the breakroom, he was held up by Fry while Davis, Bebout, and Eovaldi took
turns punching him in the face, eyes, mouth, nose, head, neck, stomach, ribs, and groin. (Id. at 57.) Eovaldi then held Martinez up so that Fry could punch Martinez in the same manner. (Id. at
7.) Other unknown corrections officers were present in the room and aided Fry, Davis, Bebout,

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and Eovaldi in attacking Martinez. (Id.) During the attack, Martinez says that none of the
officers involved tried to protect Martinez or summon medical assistance. (Id.)
After the attack in the breakroom, Martinez was dragged to a nearby holding cell by
unspecified officers. (Id. at 8.) He was then called racist names and again “sadistically and
violently beaten” by Fry, Davis, Bebout, and Eovaldi. (Id.) Martinez was then escorted to an
Internal Affairs office at the prison by Eovaldi; on the way, Eovaldi allegedly punched Martinez
in the face, causing him further injury. (Id. at 9.) When Martinez arrived at the Internal Affairs
office, he was seen by Officer Ellett. (Id. at 8.) He begged Ellett to loosen the handcuffs and
Ellett refused, laughing at Martinez and telling him to “fucking suffer asshole.” (Id.) An
unknown nurse then came to the Internal Affairs office, wiped the blood off of Martinez’s face,
and said “that’s what you deserve, you deserve to get beat up and suffer.” (Id.) Ellett and the
nurse ignored Martinez’s injuries and did not seek any treatment for him. (Id.)
After Martinez was done in the Internal Affairs office, he was returned to a holding cell
in one of the prison’s housing units and ordered into a stress position for several hours while he
was handcuffed behind his back. (Id. at 9.) Sometime later that night, Martinez was transferred
to Pontiac Correctional Center. (Id. at 10.) When he arrived at Pontiac, photographs of his
injuries were taken and he received medical treatment. (Id.) Martinez says that he suffered
busted lips, a swollen jaw, facial trauma, eye damage, loss of vision, nerve damage, scarring, a
bloody nose, and bruising across numerous areas of his body due to the attacks. (Id.)
In the months that followed the attack, Martinez says that he exhausted his available
remedies by filing grievances with prison officials. (Id. at 11.) Unsatisfied with the prison’s
response, Martinez filed a § 1983 complaint in this Court on July 13, 2015. (Id. at 1.)

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Discussion
Martinez has split his complaint into three discrete counts and specified the parties he
wishes to sue for each, so the Court will assume that those are the counts he wishes to pursue in
this case. To facilitate the management of future proceedings, the parties and the Court will use
the following designated counts in all pleadings and orders, unless otherwise directed by the
Court. The designation of these counts does not constitute an opinion as to their merit.
COUNT 1:

Fry, Davis, Bebout, Eovaldi, and other Unknown Parties engaged in
excessive force against Martinez, in violation of the Eighth Amendment.

COUNT 2:

Fry, Davis, Bebout, Eovaldi, and other Unknown Parties failed to protect
Martinez from excessive force, in violation of the Eighth Amendment.

COUNT 3:

Fry, Davis, Bebout, Eovaldi, Ellett and other Unknown Parties failed to
treat the injuries Martinez incurred during the instances of excessive force
on August 14, 2013, in violation of the Eighth Amendment.

Martinez’s complaint focuses on allegations of excessive force, so the Court will start
there (Count 1). To put forth an excessive force claim, a prisoner must show that an assault
occurred and that it was “carried out maliciously and sadistically, rather than as part of a goodfaith effort to maintain or restore discipline.” Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010).
Critically, not “every malevolent touch by a prison guard gives rise to a federal cause of action”
– an inmate who complains of a “‘push or shove’ that causes no discernible injury almost
certainly fails to state a valid excessive force claim.” Id. (quoting Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir. 1973)). Here, Martinez has alleged that Fry, Davis, Bebout, and Eovaldi
attacked him on his way to the prison cafeteria; that Fry and other Unknown Party officers
violently picked Martinez up by his handcuffs and chains and dragged him to a breakroom; that
Fry, Davis, Bebout, Eovaldi, and other Unknown Party officers attacked him in the breakroom;
that Fry, Davis, Bebout, and Eovaldi attacked him again in a cell; that Eovaldi punched him
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while transferring him to an Internal Affairs office; and that Unknown Party officers forced him
to remain in a stress position for hours after the assault while still handcuffed. These allegations
are sufficient to allege arguable excessive force claims for purposes of screening, so Count 1
will be allowed to proceed as to Fry, Davis, Bebout, Eovaldi, and the Unknown Party officers.
Martinez also claims that a number of prison officials failed to protect him during the
attack (Count 2). “To state a claim premised on prison officials’ failure to protect him from
harm, [Martinez] must allege that the defendants knew of and disregarded an ‘excessive risk’ to
his ‘health and safety.’” Christopher v. Buss, 384 F.3d 879, 882 (7th Cir. 2004) (quoting Farmer
v. Brennan, 511 U.S. 825, 837 (1994)). In this vein, the failure of officers to intervene in a
beating can violate a prisoner’s constitutional rights – if a prisoner “can show” that an “officer
attacked him while another officer ignored a realistic opportunity to intervene, he can recover.”
Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000). Martinez says that several officers “failed to
intervene . . . while [he] was being . . . beaten by Defendants in turn.” (Doc. 1 at 13.) Given his
reference to “beatings,” Martinez seems to be alleging that Fry, Davis, Bebout, and Eovaldi
failed to protect him from each other while the four attacked him outside of the cafeteria; that
Fry, Davis, Bebout, Eovaldi, and other Unknown Party officers failed to intervene while the
group attacked him in the breakroom; and that Fry, Davis, Bebout, and Eovaldi failed to protect
him from each other while the four attacked him again in a cell. Those allegations are sufficient
to state arguable failure-to-protect claims for purposes of preliminary screening review. See
Miller, 220 F.3d at 495; see also Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). Accordingly,
Count 2 may proceed as to Fry, Davis, Bebout, Eovaldi, and the Unknown Party corrections
officers who were present during the beatings referenced in Martinez’s complaint.

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Martinez’s final claim is that Fry, Davis, Bebout, Eovaldi, Ellett, an Unknown Party
nurse, and Unknown Party corrections officers failed to provide him with medical care for the
injuries he sustained during the attacks (Count 3). To state a medical claim under the Eighth
Amendment, a plaintiff must satisfy a two-part test: he must first show that his condition “was
objectively serious,” and must then demonstrate that named defendants acted with deliberate
indifference towards that condition. Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000).
For screening purposes, Martinez has alleged the existence of a serious medical need. An
objectively 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.” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001). Factors that
indicate a serious condition include “the 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.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). Here, Martinez’s
facial trauma, hand injuries, jaw injuries, bruises, and other injuries – which allegedly required xrays and treatment after his transfer out of Menard – qualify as serious for purposes of screening.
See Cooper v. Casey, 97 F.3d 914, 916-17 (7th Cir. 1996) (cellmates’ cuts, severe muscular pain,
and eye and skin irritation from beating could qualify as a serious medical condition).
Martinez has also alleged deliberate indifference to his medical needs by the named
defendants. Construing his complaint liberally, he first suggests that he told Ellet and the
Unknown Party nurse of the injuries stemming from his handcuffs and the pain from his other
injuries and they did nothing. An allegation that an official knew of a condition but failed to
“provide[] any treatment” states an arguable claim. Montanez v. Feinerman, 439 F. App’x 545,
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549 (7th Cir. 2011). Martinez goes on to claim that Fry, Davis, Bebout, Eovaldi, and the other
Unknown Party officers caused his injuries by participating in his beatings, but then failed to get
him medical care. That, too, is sufficient to state an arguable claim of deliberate indifference.
See Cooper, 97 F.3d at 917 (“Beating a person in violation of the Constitution should impose on
the assailant a duty of prompt attention to any medical need to which the beating might give
rise . . . .”).

As such, Count 3 may proceed as to Fry, Davis, Bebout, Eovaldi, Ellet, the

Unknown Party officers involved in the attacks on Martinez, and the Unknown Party nurse.
One closing note concerning the Unknown Party officers and nurse: these parties must
be identified with particularity before service of the complaint can occur on any of them. Where
a prisoner’s complaint states specific allegations describing the conduct of unknown officers
sufficient to raise a claim against them, the prisoner should have the opportunity to engage in
limited discovery in order to ascertain the identity of those defendants. Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009). In this case, guidelines for discovery aimed
at identifying the Unknown Party defendants will be set by the magistrate judge, so that Martinez
can identify those individuals. Once these parties are identified, Martinez shall file a motion to
substitute the named individuals with the Unknown Party designates.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, COUNT 1 shall PROCEED
against FRY, DAVIS, BEBOUT, EOVALDI, and the UNKNOWN PARTY officers.
IT IS HEREBY ORDERED that, for the reasons stated, COUNT 2 shall PROCEED
against FRY, DAVIS, BEBOUT, EOVALDI, and the UNKNOWN PARTY officers.

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IT IS HEREBY ORDERED that, for the reasons stated, COUNT 3 shall PROCEED
against FRY, DAVIS, BEBOUT, EOVALDI, ELLET, the UNKNOWN PARTY officers and
the UNKNOWN PARTY nurse.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Defendants
FRY, DAVIS, BEBOUT, EOVALDI, and ELLET: (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,
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.
Service shall not be made on the Unknown Party defendants until such time as Plaintiff
has identified them by name in a properly filed amended complaint.

It is Plaintiff’s

responsibility to provide the Court with the names and service addresses for these individuals.
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
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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 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 Stephen C. Williams for further pre-trial proceedings.
IT IS FURTHER ORDERED that Plaintiff’s pending Motion for Recruitment of
Counsel (Doc. 3) is REFERRED to Magistrate Judge Stephen C. Williams for consideration.
Further, this entire matter is REFERRED to United States Magistrate Judge Stephen C.
Williams 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 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.
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: August 11, 2015
s/ MICHAEL J. REAGAN
Chief Judge Michael J. Reagan
United States District Judge

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