Ellis v. Shurtz et al

Filing 5

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge J. Phil Gilbert on 11/16/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONDALE L. ELLIS, No. R-59443,
Plaintiff,
vs.

CIVIL NO. 15-cv-1155-JPG

TYSON P. SHURTZ,
SERGEANT PELKER,
STEVEN P. RICHARD,
LIEUTENANT CARTWRIGHT,
MAJOR ZEIGLER,
MAJOR HASEMEYER, and
UNKNOWN PARTY,
Defendants.
MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Rondale Ellis is currently incarcerated at Hill Correctional Center. (Doc. 1.)
Proceeding pro se, he has filed a complaint pursuant to 42 U.S.C. § 1983 against several
correctional officers employed by Menard Correctional Center (“Menard”), where he was
previously incarcerated. Ellis claims the Defendants violated his rights under the Eighth and
Fourteenth Amendments. (See Doc. 1 at 11.) He seeks monetary relief. (Id.)
This matter is now before the Court for a preliminary review of Ellis’s complaint
pursuant to 28 U.S.C. § 1915A. Under § 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.” Id. § 1915A(a). During this preliminary review under § 1915A, the Court
“shall identify cognizable claims or dismiss the complaint, or any portion of the complaint,” if
the complaint “is frivolous, malicious, or fails to state a claim on which relief may be granted” or

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if it “seeks monetary relief from a defendant who is immune from such relief.” Id. §
1915A(b)(1)-(2).
Background
Ellis’s complaint alleges several instances of constitutional deprivations by Menard
correctional officers, beginning with, and indeed stemming from, an altercation between himself
and Defendants Shurtz and Sergeant Pelker. According to the complaint, on October 29, 2013, at
approximately 9:30 a.m., an argument broke out between Ellis and Shurtz. (Doc. 1 at 7-8.) For
some time, Ellis had complained to various prison personnel that the cable outlet in his prison
cell had been “cemented up,” thus preventing him from watching television for the past two
weeks. (Id. at 8.) Ellis raised this issue with Defendant Shurtz, a correctional officer at Menard,
when the latter was passing out lunch trays in the gallery where Ellis’s housing unit was located.
(Id. at 7.) When he approached Ellis’s cell and opened the chuckhole, Ellis stuck one of his arms
through the chuckhole and proceeded to request an audience with the warden. (Id.)
Ellis explained to Shurtz that he had spoken with many prison employees about his
television problem and that all of them had assured him they would resolve the problem, but
none of them ever did. (Id. at 8.) While Ellis and the correctional officer were conversing, Ellis’s
arm remained sticking out of the chuckhole. Shurtz asked Ellis to remove his arm from the
chuckhole, promising he would move him to a new cell where the television worked if he
complied with his request. (Id.) When Ellis refused, Shurtz became angry, saying, according to
Ellis, “Fuck it. I don’t give a fuck that your arm is out dumb ass [sic].” (Id.) Shurtz then
continued to pass out lunch trays. (Id.)
The complaint states that Shurtz reappeared seconds later in a fit of rage upon finding
Ellis’s arm was still sticking out of the chuckhole. (Id.) The complaint then states Shurtz

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slammed the door of the chuckhole on Ellis’s arm, an act that resulted in swelling and multiple
lacerations. (Id.) Ellis, however, continued to leave his arm sticking out of the chuckhole,
requesting to speak with the warden. (Id.) Shurtz called Ellis a “dumb fucker” and retreated from
the scene. (Id.)
Sometime later, at an unspecified time, Shurtz returned to Ellis’s cell, this time with
Defendant Pelker. (Id.) Pelker ordered Ellis to remove his arm from the chuckhole. (Id.) When
Ellis refused, Pelker slammed the chuckhole door on Ellis’s arm with even more force than did
Shurtz. (Id. at 8-9.) Ellis, in pain, removed his arm from the chuckhole. (Id. at 9.) Ellis and
Pelker exchanged words, and Pelker told Ellis he was going to return and take his television.
(Id.)
Sometime after Pelker and Shurz left, Ellis noticed that the water in his cell had been shut
off. (Id.) Apparently distraught, he covered the cell door and window with a sheet. (Id.) The
complaint then alleges that several correctional officers began banging on Ellis’s cell window
and door, informing him that they were going to break his television. (Id.) After two hours had
passed, Defendant Lieutenant Cartwright approached the door and asked Ellis to remove the
sheet from the door and window. (Id.) Ellis refused, again requesting to speak with the warden.
(Id.) This angered Cartwright, who then told Ellis they were going to take his television and
alluded to the fact that the prison tactical team (referred to by Ellis as “Orange Crush,” an
appellation this Court will adopt herein), would be coming soon. (Id.) About one hour after his
conversation with Cartwright, Ellis alleges an unknown officer, who referred to himself as “the
Major,”1 ordered Ellis and his cellmate to remove the sheet from the door and window. (Id.) Ellis
again refused. (Id.) Approximately thirty minutes later, Orange Crush arrived. (Id.)

1
It is unclear from the complaint whether this individual is Defendant Major Ziegler, Defendant Major
Hasmeyer, or some other correctional officer who holds the rank of major.
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The complaint alleges Defendant Sergeant Steven Richard of Orange Crush ordered Ellis
and his cellmate to approach the door “and coff [sic] up.” (Id.) When both prisoners refused, the
complaint alleges the tactical team sprayed “O.C. spray”2 into Ellis’s cell through the chuckhole.
(Id.) Ellis alleges the spray caused him and his cellmate to choke and gag. (Id.) Only seconds
later, Ellis asserts Defendant Unknown Party (an unspecified number of Orange Crush officers)
rushed into the cell and “punched, choked, struck, and kicked” Ellis and his cellmate “one or
more times” each, even though both prisoner’s wrists had been secured by restraints. (Id.) Ellis
alleges he briefly lost consciousness during the beatings. (Id.) The complaint goes on to state that
members of Orange Crush placed restraints on the prisoners’ ankles that were so tight they left
abrasions. (Id.) Ellis pleaded with members of the tactical team to loosen the restrains, but they
refused to do so. (Id. at 9-10.) Ellis states that all the while he was being assaulted, Major
Zeigler, Major Hasemeyer, Lieutenant Cartwright, Sergeant Pelker, and Sergeant Richard, all
officers holding authority over the members of the tactical team and present for and aware of the
situation, failed to come to the aid of Ellis and his cellmate. (Id. at 10.)
Upon being restrained, Ellis and his cellmate were escorted by members of Orange Crush
to a different section of the same housing unit to await the arrival of the prison nurse to treat their
injuries. (Id.) Each prisoner was flanked on either side by an officer. (Id.) There was also an
officer recording the scene with a video camera. (Id.)3 The two prisoners were ordered to face the
wall with their heads down. Ellis alleges that, without warning, Defendant Unknown Party (the
officer standing on his right side) placed his hand on the back of Ellis’s head and rammed his
knee into Ellis’s face, breaking his nose. (Id.) The nurse eventually arrived, and Ellis and his
cellmate were taken to the Health Care Unit (“HCU”). (Id.) While being escorted to the HCU

2
“O.C. spray” presumably stands for “oleoresin capsicum spray,” a type of pepper spray.
3
The complaint states that the officer had been recording “the entire incident,” and “had been [recording]
the whole entire time.” (Id.)
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and back again to his cell, Ellis alleges Unknown Party (the officer on his right side) threatened
him several times, including saying that he would “drop [him] on [his] face” if he did not walk
faster. (Id.)
Upon returning to their unit, the two prisoners were strip searched and placed back into
the cell. (Id.) Ellis alleges that he and his roommate were denied access to their items of personal
property and were without running water for a week. (Id.) A prisoner housed in an adjacent cell
told Ellis he witnessed one of the Orange Crush officers break his television. (Id.) The day after
the incident, someone was sent to remove the cement covering the cable outlet. (Id.)
Discussion
To facilitate the management of future proceedings, and in accordance with the
objectives of Federal Rules of Civil Procedure 8 and 10, the Court finds it appropriate to break
the claims in Ellis’s pro se complaint into numbered counts, as shown below. The parties and the
Court will use these designations 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. Some of
Ellis’s claims survive preliminary review.
COUNT 1: Defendants Shurtz and Pelker physically assaulted Plaintiff in
violation of his Eighth Amendment rights.
COUNT 2: Unknown Party pepper sprayed and physically assaulted Plaintiff in
violation of his Eighth Amendment rights.
COUNT 3: Defendants Zeigler, Hasemeyer, Cartwright, Pelker, and Richard
failed to intervene while Unknown Party pepper sprayed and physically assaulted
Plaintiff in violation of his Eighth Amendment rights.
COUNT 4: Unknown Party slammed his knee into Plaintiff’s nose in violation of
his Eighth Amendment rights.
COUNT 5: Unknown Party verbally threatened Plaintiff in violation of his Eighth
Amendment rights.

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COUNT 6: Plaintiff was without water in his cell for a week in violation of his
Eighth Amendment Rights.
COUNT 7: Plaintiff was deprived of his personal property in violation of his
Fourteenth Amendment rights.
COUNT 8: Defendant Unknown Party destroyed Plaintiff’s television in
violation of his Fourteenth Amendment rights.
A. Eighth Amendment Excessive Force Claims
Counts 1, 2, and 4 survive preliminary review. The intentional use of excessive force by
correctional employees against an inmate without penological justification constitutes cruel and
unusual punishment in violation of the Eighth Amendment, and is therefore 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 a part of ‘a good-faith effort to maintain or restore discipline.’”
Wilkins, 599 U.S. at 40 (citing Hudson v. McMillian, 503 U.S. 1, 6 (1992)). Several factors are
relevant to this determination, including (a) the need for force, (b) the amount of force applied,
(c) the threat a guard reasonably perceived, (d) the effort made to temper the severity of the
forced used, and (e) the extent of the injury caused to the prisoner. Hudson, 503 U.S. at 7;
Fillmore v. Page, 358 F.3d 496, 504 (7th Cir. 2004). Plaintiff has adequately pleaded these
factors with reference to Defendants Shurtz’s and Pelker’s slamming of the chuckhole door on
Plaintiff’s arm (Count 1). Plaintiff may also proceed with Counts 2 and 4 against the unknown
members of Orange Crush who pepper sprayed and assaulted him and the unknown member of
Orange Crush who slammed Plaintiff’s knee into his own face, provided he is able to identify
these unknown parties through discovery.
In addition, an officer who witnesses the improper use of force against a prisoner can be
found liable under the Eighth Amendment. Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972)
(“[O]ne who is given the badge of authority . . . may not ignore the duty imposed by his office
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and fail to stop other officers who summarily punish a third person in his presence or otherwise
within his knowledge.”). For this reason, Plaintiff may also proceed with Count 3 against
Defendants Zeigler, Hasemeyer, Cartwright, Pelker, and Richard for their failure to intervene
while members of Orange Crush applied excessive force against Plaintiff.
B. Eighth Amendment Verbal Threat Claim
Plaintiff may not proceed with Count 5 at this time. Plaintiff claims that an unknown
member of Orange Crush, presumably the one who assaulted Plaintiff while he was waiting for
the prison nurse to arrive, verbally threatened him as he was being escorted to the HCU and back
to his cell. Most instances of verbal abuse do not rise to the level of cruel and unusual
punishment. Dobbey v. Ill. Dep’t of Corrections, 574 F.3d 443, 446 (7th Cir. 2009); DeWalt, 22
F.3d at 612. While verbal abuse that leads to “severe psychological harm” may rise to such a
level, Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015), Plaintiff has not alleged he was affected
by the officer’s threats in any way. Therefore, Count 5 is dismissed without prejudice.
C. Eighth Amendment Conditions of Confinement Claim
Cell conditions may violate the Eighth Amendment when they are so dangerous they
threaten a prisoner’s health. Townsend v. Fuchs, 522 F.3d 765, 772 (7th Cir. 2008). Prison
officials may be held liable under § 1983 if they are aware of the dangerous nature of the
conditions, but refuse to do anything about it. Id. at 773. Here, there is no indication that
Plaintiff’s cell was his only source for drinking or washing, or that he experienced any adverse
health effects as a result of the lack of water in his cell for a week. Therefore, Count 6 is
dismissed without prejudice.

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D. Fourteenth Amendment Due Process Claims
Plaintiff may not proceed with Count 7 (deprivation of personal property for a week) and
Count 8 (destruction of television). The only constitutional right that might be implicated by
these claims is Plaintiff’s right under the Fourteenth Amendment to be free from deprivations of
his property by state actors without due process of law. See U.S. CONST. amend. XIV, § 1. To
state a claim under the Due Process Clause of the Fourteenth Amendment, a plaintiff must
establish a deprivation of liberty or property without due process of law; if the state provides an
adequate remedy, the plaintiff has no due process claim. See Hudson v. Palmer, 468 U.S. 517,
530-36 (1984). The Seventh Circuit has found that Illinois provides an adequate post-deprivation
remedy in an action for damages in the Illinois Court of Claims. Murdock v. Washington, 193
F.3d 510, 513 (7th Cir. 1999); Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir. 1993); see also
705 ILL. COMP. STAT. 505/8. Accordingly, Counts 7 and 8 are dismissed without prejudice.
Discovery of Unknown Party
Plaintiff shall be allowed to proceed with Counts 2 and 4 against Defendant Unknown
Party. However, the parties denoted by the “Unknown Party” label must be identified with
particularity before service of the complaint can be made on them. Where a prisoner’s complaint
states specific allegations describing conduct of prison staff members sufficient to raise a
constitutional claim, but the names of those defendants are not known, 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, the United States Magistrate Judge shall set guidelines for discovery aimed at identifying
these parties, so that Ellis can amend the complaint to include all references to the defendants.

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Disposition
IT IS HEREBY ORDERED that Plaintiff may proceed on COUNT 1 against
Defendants SHURTZ and PELKER, on COUNT 2 against Defendant UNKNOWN PARTY,
on COUNT 3 against Defendants ZEIGLER, HASEMEYER, CARTWRIGHT, PELKER,
and RICHARD, and on COUNT 4 against UNKNOWN PARTY.
COUNTS 5, 6, 7, and 8 are DISMISSED without prejudice. Defendant UNKNOWN
PARTY is DISMISSED from this action without prejudice as concerns COUNTS 5 and 8.
As for COUNTS 1-4, the Clerk of Court shall prepare for Defendants SHURTZ,
PELKER, ZEIGLER, HASEMEYER, CARTWRIGHT, and RICHARD: (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 pay the full costs of
formal service, to the extent authorized by the Federal Rules of Civil Procedure.
Service shall not be made on Defendant UNKNOWN PARTY until such time as
Plaintiff has identified these defendants by name in a properly filed amended complaint, which
includes identifying these defendants in the caption and inserting the individuals’ names, where
applicable, throughout the 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

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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 a United States
Magistrate Judge for further pre-trial proceedings, including expedited discovery aimed at
identifying Defendant UNKNOWN PARTY.
Further, this entire matter shall be REFERRED to the United States Magistrate Judge 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

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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: November 16, 2015
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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