Brown v. Shah et al

Filing 17

ORDER DISMISSING CASE. Signed by Chief Judge Michael J. Reagan on 9/22/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL BROWN, #R-65831,

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Plaintiff,
vs.
VIPIN SHAH,
SHIRLEY, COWSKI, and
LASHBROOK,
Defendants.

Case No. 16-cv-00276-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff

Michael

Brown,

an

inmate

who

is

currently

incarcerated

at

Pinckneyville Correctional Center (“Pinckneyville”), brings this pro se action for alleged
violations of his constitutional rights under 42 U.S.C. § 1983 (Doc. 10). Plaintiff makes a
number of claims under the Eighth Amendment all stemming from an incident of excessive force
by prison guards. Additionally, he alleges a violation of his Fourteenth Amendment rights for the
defendants’ non-response to his grievances. In connection with these claims, Plaintiff sues Vipin
Shah (doctor), Shirley (lieutenant), Cowski (lieutenant), and Jacqueline Lashbrook
(Pinckneyville warden) for monetary damages and injunctive relief.
This case is now before the Court for a preliminary review of the Complaint pursuant to
28 U.S.C. § 1915A. Under Section 1915A, the Court is required to promptly screen prisoner
Complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). 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). The Court is reviewing the First Amended
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Complaint because the original complaint was dismissed without prejudice for incompleteness
(Docs. 1, 9, 10).
The Complaint
Brown alleges that on August 25, 2015, he was attacked by a fellow inmate at
Pinckneyville. Defendants Shirley and Cowski responded to the fight in Brown’s housing unit
and immediately detained him by tightly handcuffing his hands behind his back. He alleges that
Shirley and Cowski should not have used such force to restrain him because he was obviously
suffering from a severe asthma attack and could be observed gasping for breath and sweating
profusely (Id.). Despite his pleas to have a minute to catch his breath or to be cuffed in front of
his body, the Defendants persisted and forced him to walk more than 500 yards to the medical
unit (Id.). On the walk Defendants told him to “shut up” and they continued forcing his arms
upwards in painful positions (Id.).
Brown filed grievances about Shirley and Cowski’s conduct, but received no responses
(Id. at 6). When he inquired about the grievances, he was told they were not received, so he
submitted more grievances (Id.). Brown also sought medical care for his shoulder injuries as a
result of the handcuffing, but Defendant Shah denied care. Shah simply told him to “lose more
weight and drink more water” (Id.). Brown followed up on his efforts to get medical care by
filing grievances about that as well (Id.). He alleges that he received no response to those
grievances and that the non-response constituted an effort to impeded his ability to litigate (Id.).
As a whole, Brown alleges that the Defendants’ conduct constituted deliberate indifference. He
claims that he suffered rotator cuff injuries to both shoulders, severe headaches and depression,
and other unspecified mental injuries (Id.).

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Discussion
Based on the allegations, the Court finds it convenient to divide the pro se Complaint into
the following enumerated claims. 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 regarding their merit.
Count 1:

Eighth Amendment claim against Defendants Shirley and Cowski
for use of excessive force by handcuffing Brown and transporting
him to the medical unit in an aggressive fashion;

Count 2:

Eighth Amendment deliberate indifference to a serious medical
condition claim against Defendant Shah for failing to treat
Brown’s shoulder injuries that resulted from the handcuffing
incident;

Count 3:

Eighth and Fourteenth Amendment claim against Defendant
Lashbrook for deliberately failing to respond to Brown’s
grievances; and,

Count 4:

Denial of access to the courts claim against Defendant Lashbrook
for failing to respond to Brown’s grievances

All counts shall be dismissed for failure to state a claim upon which relief may be
granted. All Defendants shall be dismissed.
Count 1
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, 38-40 (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 goodfaith 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 damages for the use of excessive force

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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.” Id. at 37-38 (the question is whether force
was de minimis, not whether the injury suffered was de minimis); see also Outlaw v. Newkirk,
259 F.3d 833, 837-38 (7th Cir. 2001).
“Several factors are relevant in determining whether a defendant applied force in good
faith or for purposes of causing harm, including the need for force, the amount of force used, the
threat reasonably perceived by the officer, efforts made to temper the severity of the force, and
the extent of the injury caused by the force.” Lewis v. Downey, 581 F.3d 467, 477 (7th Cir.
2009). For example, force may be excessive if a guard issues a directive and applies force
without giving the inmate any time to comply with the directive. Id. at 478. However, force is
not inherently severe or excessive simply because officers choose to use handcuffs or use some
degree of force to move a disobedient inmate from one location to another. See Fillmore v. Page,
358 F.3d 496, 504-05 (7th Cir. 2004) (noting that incidental bumping and roughness that
occurred when guards encountered and moved an inmate from his cell after he had thrown hot oil
at other guards was not excessive force).
Here, Brown has failed to state a sufficient factual basis to proceed with his excessive
force claim against Defendants Shirley and Cowing. At most, he alleges that the officers used
handcuffs in a fashion that was too aggressive. He alleges that the use of handcuffs tore his
rotator cuffs, but he has not supplied medical evidence of this and he does not complain of any
ongoing pain, which detracts from the notion that he suffered a serious injury. Weighing his
claim that the use of handcuffs was too aggressive against the other facts presented, his claim
does not amount to deliberate indifference. The officers came to his housing unit in response to a
physical altercation between him and another inmate—meaning that the guards were likely on

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high alert. Officers may use some degree of force to restore discipline. Moreover, Brown does
not allege that he was handcuffed for an unreasonably long period of time, that there was no
justification whatsoever for cuffing him, or that he was kept from medical care by being cuffed.
In fact, the handcuffs were briefly placed on him as he was transported to the medical
unit. Though he ultimately alleges that Dr. Shah did not provide sufficient medical care, that
allegation has no bearing on the propriety of using the cuffs. Furthermore, Brown does not argue
that the officers should not have cuffed him altogether, and he even states in his complaint that
he offered to be cuffed in front of his body. Considering all of the facts together, Brown has
failed to state a viable claim against Shirley and Cowing for their brief use of handcuffs to
restore discipline. Accordingly, Count 1 will be dismissed with prejudice against Defendants
Shirley and Cowing.
Count 2
The Eighth Amendment to the United States Constitution protects prisoners from cruel
and unusual punishment. U.S. CONST., amend. VIII; see also Berry v. Peterman, 604 F.3d 435
(7th Cir. 2010). Prison conditions that deprive inmates of basic human needs, such as inadequate
nutrition, health, or safety, may constitute cruel and unusual punishment. Rhodes v. Chapman,
452 U.S. 337, 346 (1981); see also James v. Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir. 1992).
Prison officials also violate the Eighth Amendment’s proscription against cruel and unusual
punishment when their conduct demonstrates “deliberate indifference to serious medical needs of
prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). A medical condition need not be lifethreatening to be serious; rather, it can be a condition that would result in further significant
injury or unnecessary and wanton infliction of pain if not treated. Gayton v. McCoy, 593 F.3d
610, 620 (7th Cir. 2010). The deliberate indifference standard is satisfied if the plaintiff shows

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that the prison official acted or failed to act despite the official’s knowledge of a substantial risk
of serious harm. Farmer v. Brennan, 511 U.S. 825, 842, 847 (1994).
At this early stage, the Complaint suggests that Brown suffered from shoulder pain as a
result of the handcuffs placed on him by Defendants Shirley and Cowski. He alleges that he has
two “total” rotator cuff injuries. According to the Complaint, every request Brown made for
medical care for his shoulder pain was met by refusal. Apparently Shah told him to drink water
and lose weight. Chronic shoulder pain could be a serious condition under the objective prong of
the deliberate indifference test because it could result in prolonged discomfort.
As to the subjective prong of the deliberate indifference test, Plaintiff has failed to show
that Shah acted with deliberate indifference to his serious medical need. Though Brown alleges
that he sought and was denied medical care for his shoulder pain, the medical records he
appended to his complaint reflect no note of shoulder injury. The medical notes do reflect that he
asked for the handcuffs to be removed due to his asthmatic condition, but the records do not
denote shoulder pain. Furthermore, Plaintiff’s final grievance, to the Administrative Review
Board, makes no mention of untreated shoulder pain, and it instead just focuses on how the
handcuffs caused belabored breathing and how he did not get responses to his internal grievances
at Pinckneyville. Notably, none of the grievances appended mention any shoulder pain or lack of
medical care, instead just focusing on the propriety of handcuffs during an asthma attack.
The Seventh Circuit has held that if the exhibits to a complaint directly contradict the
complaint, the exhibits should be favored. See Phillips v. Prudential Ins. Co. of Am., 714 F.3d
1017, 1020 (7th Cir. 2013) (“To the extent that an exhibit attached to or referenced by the
complaint contradicts the complaint’s allegations, the exhibit takes precedent.”). Here, the
exhibits do not directly contradict the Complaint, but they certainly weigh against the notion that

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Brown was denied medical care or suffered a shoulder injury. Moreover, the exhibits provide no
factual support for the assertion that Shah was aware of Brown’s shoulder pain and refused care.
The records show that Shah addressed Brown’s asthma condition, but there is no mention of an
injured shoulder.
Plaintiff’s bald assertion that Shah denied him treatment without any supporting facts
such as, specifically when treatment was sought, how often it was sought, or what the tenor of
the denial was, is simply not enough to state a claim for deliberate indifference against Shah. See
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (1955) (stating that a plaintiff must provide
“more than labels and conclusions” or a “formulaic recitation of the elements”). The documents
appended to the Complaint do not suggest that Shah was aware of a shoulder injury and the lack
of other supporting facts makes this claim too speculative, even at the screening phase, to
proceed. Therefore, Count 2 is dismissed without prejudice as to Defendant Shah—the only
Defendant named in connection with denied medical care.
Count 3
The Complaint refers to the Eighth and Fourteenth Amendments in connection with
conduct by Defendant Lashbrook—essentially alleging that Lashbrook’s non-response to
Brown’s grievances constituted deliberate indifference to his medical needs. To the extent that
Count 3 arises from Defendant Lashbrook’s failure to respond to Brown’s grievances, it is
subject to dismissal. Prison grievance procedures are not constitutionally mandated and thus do
not implicate the Due Process Clause per se. As such, the alleged mishandling of grievances “by
persons who otherwise did not cause or participate in the underlying conduct states no claim.”
Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). The failure to address grievances does not
give rise to a free-standing constitutional claim in the deliberate indifference context, though, as

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the Seventh Circuit recently noted, non-response or inaction could be important evidence in a
deliberate indifference to serious medical needs claim. See Daniel v. Cook Cnty. et al., No. 152832, slip op. at 14-15 (7th Cir. Aug. 15, 2016) (“[D]elays in responses to Daniel’s grievances
do not support an independent constitutional claim, but those delays may support Daniel’s other
evidence that systemic problems at the Jail caused him to suffer injury as a result of official
indifference. The evidence that such delays occurred further bolsters Daniel’s general claim of
inadequate treatment.”). The Daniel Court’s rationale suggests that delays or non-responses to
grievances could, though not posing a free-standing claim, support Brown’s overall theory of
deliberate indifference to his medical needs.
Despite Daniel, Brown is unable to make a claim for deliberate indifference to a medical
need by Defendant Lashbrook because his grievances to her do not give her notice that he was
being denied medical care. The grievances appended to his complaint reflect his excessive force
concerns, but none of the grievances specifically mention a shoulder injury and a subsequent
lack of treatment. Thus, the non-response to these grievances cannot support a grander theory of
deliberate indifference to medical needs by Lashbrook. There is no evidence that Lashbrook was
specifically made aware of his shoulder injury and denied to take action to verify that he received
sufficient medical care. Accordingly, Count 3 will be dismissed with prejudice as to Defendant
Lashbrook for failure to state any claim upon which relief may be granted.
Count 4
Brown also makes a very bare bones claim that Lashbrook’s conduct denied him access
to “litigation.” Again, the denial of grievances does not constitute a freestanding claim under the
Fourteenth Amendment. See Daniel, No. 15-2832, slip op. at 14-15. The facts presented by
Brown also do not support a traditional access to courts claim because he does not explain how a

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non-response to grievances prevented him from litigating his medical needs, and the fact that he
successfully composed and filed his complaint suggests otherwise. To state a claim, a plaintiff
must explain “the connection between the alleged denial of access to legal materials and an
inability to pursue a legitimate challenge to a conviction, sentence, or prison conditions,” Ortiz v.
Downey, 561 F.3d 664, 671 (7th Cir. 2009) (internal quotation and citation omitted). This
requires a plaintiff to identify the underlying claim that was lost and the remedy now sought in
replacement of that loss. See Christopher v. Harbury, 536 U.S. 403, 416 (2002); Steidl v.
Fermon, 494 F.3d 623, 633 (7th Cir. 2007). Brown has not demonstrated that delays in the
grievance system, or Lashbrook’s role in that system, caused him to lose a legal claim.
Accordingly, Count 4 will be dismissed with prejudice for failure to state a claim.
Pending Motions
Plaintiff’s Motions for Recruitment of Counsel (Docs. 3, 11) and his Motions for Service
of Process at Government Expense (Doc. 4, 13) are hereby DENIED as moot because his entire
action is being dismissed at this juncture.
Plaintiff’s second Motion to Proceed in forma pauperis (Doc. 12) is also DENIED as
moot because the Court granted his original Motion to Proceed in forma pauperis (Docs. 2, 8).
Disposition
IT IS ORDERED that COUNT 1 is DISMISSED with prejudice against Defendants
SHIRLEY and COWSKI for failure to state a claim upon which relief may be granted.
COUNT 2 is DISMISSED in its entirety without prejudice against Defendant SHAH for failure
to state a claim upon which relief may be granted. COUNTS 3 and 4 are also DISMISSED in
their entirety with prejudice against Defendant LASHBROOK for failure to state a claim upon
which relief may be granted.

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Because Brown’s Amended Complaint still fails to state a claim upon which relief may
be granted, this Court will now assess a strike for the dismissal of the Amended Complaint,
pursuant to § 1915A(b)(1). See Paul v. Marberry, 658 F.3d 702, 704 (7th Cir. 2011) (noting that
a “dismissal is a dismissal, and provided that it is on one of the grounds specified in [§] 1915(g)
it counts as a strike, . . ., whether or not it’s with prejudice.”).
Plaintiff's obligation to pay the filing fee for this action was incurred at the time the
action was filed, thus the filing fee of $350 remains due and payable. See 28 U.S.C. §
1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
The Clerk shall CLOSE THIS CASE and enter judgment accordingly.
Notice
If Plaintiff wishes to contest this Order, he has two options. He can ask the Seventh
Circuit to review the Order, or he can first ask the undersigned to reconsider the Order before
appealing to the Seventh Circuit.
If Plaintiff chooses to go straight to the Seventh Circuit, he must file a notice of appeal
within 30 days from the entry of judgment or order appealed from. FED. R. APP. P. 4(a)(1)(A).
The deadline can be extended for a short time only if Plaintiff files a motion showing excusable
neglect or good cause for missing the deadline and asking for an extension of time. FED. R. APP.
P. 4(a)(5)(A), (C). See also Sherman v. Quinn, 668 F.3d 421, 424 (7th Cir. 2012) (explaining the
good cause and excusable neglect standards); Abuelyaman v. Illinois State Univ., 667 F.3d 800,
807 (7th Cir. 2011) (explaining the excusable neglect standard).
On the other hand, if Plaintiff wants to start with the undersigned, he should file a motion
to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). The motion must be
filed within twenty-eight (28) days of the entry of judgment, and the deadline cannot be

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extended. FED. R. CIV. P. 59(e); 6(b)(2). The motion must also comply with Rule 7(b)(1) and
state with sufficient particularity the reason(s) that the Court should reconsider the judgment.
Elustra v. Mineo, 595 F.3d 699, 707 (7th Cir. 2010); Talano v. Nw. Med. Faculty Found., Inc.,
273 F.3d 757, 760 (7th Cir. 2001). See also Blue v. Hartford Life & Acc. Ins. Co., 698 F.3d 587,
598 (7th Cir. 2012) (“To prevail on a Rule 59(e) motion to amend judgment, a party must clearly
establish (1) that the court committed a manifest error of law or fact, or (2) that newly discovered
evidence precluded entry of judgment.”) (citation and internal quotation marks omitted).
So long as the Rule 59(e) motion is in proper form and timely submitted, the 30-day
clock for filing a notice of appeal will be stopped. FED. R. APP. P. 4(a)(4). The clock will start
anew once the undersigned rules on the Rule 59(e) motion. FED. R. APP. P. 4(a)(1)(A), (a)(4),
(a)(4)(B)(ii). To be clear, if the Rule 59(e) motion is filed outside the 28-day deadline or
“completely devoid of substance,” the motion will not stop the clock for filing a notice of appeal;
it will expire 30 days from the entry of judgment. Carlson v. CSX Transp., Inc., 758 F.3d 819,
826 (7th Cir. 2014); Martinez v. Trainor, 556 F.2d 818, 819–20 (7th Cir. 1977). Again, this
deadline can be extended only on a written motion by Plaintiff showing excusable neglect or
good cause.
The Court has one more bit of instruction regarding the appeals process. If Plaintiff
chooses to appeal to the Seventh Circuit, he can do so by filing a notice of appeal in this Court.
FED. R. APP. P. 3(a). The current cost of filing an appeal with the Seventh Circuit is $505.00. The
filing fee is due at the time the notice of appeal is filed. FED. R. APP. P. 3(e). If Plaintiff cannot
afford to pay the entire filing fee up front, he must file a motion for leave to appeal in forma
pauperis (“IFP motion”). See FED. R. APP. P. 24(a)(1)(C). The IFP motion must set forth the
issues Plaintiff plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If he is allowed to

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proceed IFP on appeal, he will be assessed an initial partial filing fee. 28 U.S.C. § 1915(b)(1). He
will then be required to make monthly payments until the entire filing fee is paid. 28 U.S.C. §
1915(b)(2).
IT IS SO ORDERED.
DATED: September 22, 2016
s/ MICHAEL J. REAGAN
U.S. District Judge

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