Ellis v. Shurtz et al

Filing 59

ORDER: Defendants' Motion for Summary Judgment (Doc. 37 ) is GRANTED as to Count 1 and GRANTED IN PART and DENIED IN PART as to Count 3. Plaintiff Rondale Ellis shall proceed on the claims asserted in Count 3 against Defendants Cartwright, Ric hard, and Pelker. Plaintiff's claims against Defendants Tyson Shurtz, Major Hasemeyer, and Major Ziegler are DISMISSED WITH PREJUDICE. The Clerk of Court is DIRECTED to terminate these defendants as parties to this action. Signed by Judge Staci M. Yandle on 2/7/2018. (mah)

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

RONDALE ELLIS,
Plaintiff,
vs.
TYSON P. SHURTZ, et. al,
Defendants.

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Case No. 15-1155-SMY-RJD

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Rondale Ellis, an inmate in the custody of the Illinois Department of Corrections
(“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights
were violated while he was incarcerated at Menard Correctional Center (“Menard”). He asserts
claims against Tyson Shurtz, Sergeant Pelker, Steven Richard, Lieutenant Cartwright, Major
Zeigler, and Major Hasemeyer, 1 and alleges that he was physically assaulted in violation of the
Eighth Amendment. Following threshold screening, Plaintiff proceeds on the following Counts:
COUNT 1:

Defendants Shurtz and Pelker 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.

This matter is currently before the Court on Defendants’ the Motion for Summary Judgment
(Doc. 36). Plaintiff filed a timely response (Doc. 43). For the following reasons, Defendants’
Motion is GRANTED IN PART and DENIED IN PART.

1

Plaintiff’s Counts 2 and 4 against Unknown Party were dismissed with prejudice because he failed to timely amend
his complaint (Doc. 56).

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Factual Background
Plaintiff Rondale Ellis was an inmate at Menard at all times relevant to this dispute
(Plaintiff’s Complaint, Doc. 1). On October 29, 2013 at approximately 9:30 a.m., Ellis placed
his arm in the chuckhole while Correctional Officer Tyson Shurtz was passing out lunch trays
(Id. at 7). Officer Shurtz asked Ellis to take his arm out of the chuckhole, but he refused and
stated that he wanted to see the warden (Id. at 8). Ellis explained to Shurtz that he had problems
accessing the cable line for his television in his cell and had attempted, unsuccessfully, to resolve
this issue during the past few weeks (Id.). After listening to Ellis, Shurtz told him that if he
removed his arm from the chuckhole, he would try to get him moved to another cell with
working cable (Id.). Ellis refused to remove his arm from the chuckhole, requesting again to
speak to the warden (Id.). Shurtz attempted to close the chuckhole approximately ten times
while Ellis’s arm was in it (Plaintiff’s Deposition, Doc. 37-1 at 16).

After Shurtz was

unsuccessful in closing the chuckhole, he requested assistance from Correctional Officer Roger
Pelker (Id. at 17). Pelker gave Ellis multiple direct orders for him to remove his arm from the
chuckhole but Ellis refused all such orders (Id. at 18-19). Pelker tried unsuccessfully to close the
chuckhole approximately six times before Ellis removed his arm and the chuckhole was secured
(Id. at 20).
After the chuckhole was secured, Ellis covered his cell window with a blanket and
repeated his request to see the warden about his cable (Id. at 21-22). Multiple officers came by
Ellis’s cell and ordered him to remove the obstruction but he ignored their orders (Id. at 24-45).
After several hours of Ellis refusing to remove the blanket, a correctional major reported to
Ellis’s cell and ordered him to remove the obstruction, but he ignored the major’s order as well
(Id. at 26-28). Approximately forty minutes later, the Menard Tactical Team arrived at Ellis’s
cell (Id. at 28).

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The Tactical Team gave Ellis and his cellmate three direct orders to come to the door and
cuff up (Id. at 29). Both inmates refused the orders and the Tactical Team deployed a burst of
Mace through the chuckhole (Id.). Ellis claims that the Tactical Team members then entered his
cell and assaulted him and his cellmate (Id. at 32). He alleges that he was punched, kicked, and
choked by members of the Tactical Team (Id.). He further alleges that he had lumps, bruises and
soreness as a result of being assaulted (Id. at 34). Ellis claims Hasemeyer, Ziegler, Cartwright,
Richard and Pelker were standing outside of his cell during the Tactical Team extraction and/or
saw the extraction video. (Id. at 46-47).
Ellis was taken by members of the Tactical Team to see a nurse (Id. at 35). He was
ordered to wait for the nurse on the wall with his head down (Id. at 36). Ellis alleges that one of
the Tactical Team members put his hand on the back of Ellis’s head and rammed his knee into
Ellis’s face, breaking his nose (Id.). The Tactical Team video recorded Ellis’ removal from his
cell, his transfer to the medical unit, the treatment at the medical unit, the strip search, and the
transfer back to his cell (Tactical Team video, Doc. 37-2). The video does not show a Tactical
Team member kneeing Ellis in the face while awaiting medical treatment (Id.). Ellis was
examined and treated by the nurse and scheduled for an x-ray the following day (Doc. 37-1 at
42-43). Ellis alleges that the nurse taking the x-ray the next day told him his nose was broken
(Id. at 43).
Legal Standard
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
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

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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). In 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).
The Eighth Amendment prohibits “cruel and unusual punishments” and has been
interpreted by the United States Supreme Court to encompass the “unnecessary and wanton
infliction of pain” upon prisoners in a correctional institution. Wilson v. Seiter, 501 U.S. 294,
296, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97
S.Ct. 285, 50 L.Ed.2d 251 (1976) (emphasis added)). Even objectively serious injuries suffered
by prisoners, without the requisite mens rea on the part of prison officials, do not constitute
constitutional injuries. See Wilson, 501 U.S. at 301, 111 S.Ct. 2321.
Correctional officers, who have a realistic opportunity to step forward and prevent a
fellow officer from violating a plaintiff's right through the use of excessive force but fail to do
so, may also be held liable. Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005), Fillmore v.
Page, 358 F.3d 496, 505–06 (7th Cir. 2004). In order for there to be a failure to intervene, it
logically follows that there must exist an underlying constitutional violation. Harper, 400 F.3d
at 1064; Fillmore, 358 F.3d at 506.

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Discussion
Count One - Physical Assault by Defendants Shurtz and Pelker
Defendants Shurtz and Pelker argue they are entitled to summary judgment because Ellis
failed to provide evidence that they used unconstitutional force when trying to close the
chuckhole. Ellis concedes this argument and does not oppose Defendants’ motion with respect
to Count 1 (Doc. 43 at 6). Accordingly, Defendants’ motion is GRANTED as to Count 1.
Count 3 – Failure to Intervene
Ellis also concedes that he cannot prove Defendants Hasemeyer and Ziegler were present
during the cell extraction and could have intervened on his behalf (Doc. 43 at 10). Therefore,
Defendants’ Motion is GRANTED as to the claims asserted against Hasemeyer and Ziegler in
Count 3.
Defendants argue that Ellis also cannot prove a failure to intervene claim as to the
remaining Defendants (Cartwright, Richard, and Pelker) because he cannot establish an
underlying constitutional violation. Ellis’s original Complaint alleged that an Unknown Party
pepper sprayed and physically assaulted him in violation of his Eighth Amendment rights. This
claim was dismissed because Ellis failed to timely identify the Unknown Party (Doc. 57).
However, although Ellis’ claims against the Unknown Party have been dismissed, it is plausible
that he could still succeed on a failure to intervene claim.
Unlike in Harper, where the plaintiff could not identify a specific individual who violated
his rights, here, Ellis can identify the individual officers that allegedly physically assaulted him
in violation of his Eighth Amendment rights. Since it is at least plausible that Ellis could show
an underlying constitutional violation, the question of whether the bystanders witnessed the
excessive force and failed to intervene is one for the jury.

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Defendants also assert that they are entitled to qualified immunity. At the time the
underlying incidents occurred, it was clearly established law that correctional officers, who have
a realistic opportunity to step forward and prevent a fellow officer from violating a plaintiff’s
right through the use of excessive force but fail to do so, may be held liable. Harper 400 F.3d at
1064. As such, Defendants are not entitled to qualified immunity.
Accordingly, summary judgment on Count 3 as to Defendants Hasemeyer and Ziegler is
GRANTED, but DENIED as to Defendants Cartwright, Richard, and Pelker.
Conclusion
Defendants’ Motion for Summary Judgment (Doc. 37) is GRANTED as to Count 1; and
GRANTED IN PART and DENIED IN PART as to Count 3. Plaintiff Rondale Ellis shall
proceed on the claims asserted in Count 3 against Defendants Cartwright, Richard, and Pelker.
Plaintiff’s claims against Defendants Tyson Shurtz, Major Hasemeyer, and Major Ziegler
are DISMISSED WITH PREJUDICE. The Clerk of Court is DIRECTED to terminate these
defendants as parties to this action.
IT IS SO ORDERED.
DATED: February 7, 2018
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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