Duncan v. Cleland et al

Filing 14

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge David R. Herndon on 4/12/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ALAN DUNCAN,
No. B-69424,
Plaintiff,
vs.

Case No. 16 cv–1366-DRH

LT. PEARCE,
C/O DAVIS,
C/O MOORE,
C/O WANNACK,
SGT. CHAPMAN,
M. MYERS,
C/O HOLTEN,
JOHN DOE (doctor),
JANE DOE (nurse),
COUNSELOR BARTMAN,
JOHN DOE (c/o),
JOHN DOE (c/o),
D. CLELAND
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Alan Duncan, an inmate in Menard Correctional Center (“Menard”),
brings this action for deprivations of his constitutional rights pursuant to 42
U.S.C. § 1983.

Plaintiff contends officials at Menard subjected him to excessive

force and were deliberately indifferent to his related injuries. In connection with
these claims, plaintiff sues Lt. Pearce (lieutenant), C/O Davis (correctional officer),
C/O Moore (correctional officer), C/O Wannack (correctional officer), Sgt.
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Chapman (sergeant), M. Myers (correctional officer), C/O Holton (correctional
officer), John Doe (doctor), Jane Doe (nurse), Counselor Bartman (counselor),
John Doe (correctional officer), and D. Cleland (major).

According to the

complaint, plaintiff sues all defendants in their individual and official capacities.
Plaintiff seeks monetary damages.
This case is now before the Court for a preliminary review of the complaint
pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible
or, in any event, as soon as practicable after docketing, a complaint in a
civil action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim
on which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
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 to a claim that any reasonable person would find
meritless. 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,

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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).
Upon careful review of the complaint and any supporting exhibits, the
Court finds it appropriate to exercise its authority under § 1915A; portions of this
action are subject to summary dismissal.

The Complaint
Plaintiff’s claims relate to excessive force incidents that occurred on March
29, 2016. (Doc. 1, p. 6). According to the complaint, Moore arrived at plaintiff’s
cell, reportedly to escort plaintiff to a mental health appointment.

Id. Moore

began using racial slurs and verbally harassing plaintiff. Id. Although it is not
entirely clear, the complaint indicates that plaintiff may have completed a mental
health visit with an individual identified as “Ms. Mason” and that “Ms. Mason”
placed plaintiff on suicide watch.

Id.

It appears that after the mental health

meeting, plaintiff was confronted by Pearce. Id. Pearce told Plaintiff to face the
wall. Id. Plaintiff indicated there was no wall to face. Id. At that point, Pearce
grabbed Plaintiff’s head and forced it into a window on a security door, causing
Plaintiff’s lips to bust open. (Doc. 1, p. 7). Plaintiff contends Wannack, Holten,
Moore, and Bartman observed the assault and failed to intervene. Id.
Plaintiff contends the assault continued when Holten threw Plaintiff to the
ground while Pearce was choking the Plaintiff. Id. During this time, plaintiff was
handcuffed. Id. Additionally, while plaintiff was on the ground leg shackles were

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applied. Id. Plaintiff yelled that he could not breathe. Id. In response, Pearce
loosened his grip on plaintiff’s neck, temporarily, only to proceed with applying
more pressure to Plaintiff’s windpipe. Id.

Pearce choked plaintiff until he lost

consciousness. Id.
At some point during the attack, plaintiff was being punched by Wannack,
Pearce, and two unidentified correctional officers.

Id.

The unidentified

correctional officers were from the 7am to 3pm shift for the R-5 cell house. Id.
Plaintiff was then placed on a property cart and the two unidentified correctional
officers sat on his back “bouncing up and down.” Id. Plaintiff continued to tell
the officers that he could not breathe. Id.
Plaintiff was then placed in cell 6B-6. Id. Plaintiff instantly began vomiting
and had a loose bowel movement.

Id.

Plaintiff requested medical attention.

(Doc. 1, p. 8). Plaintiff’s requests for medical attention were directed to Pearce,
Moore, Holten, Chapman, Wannack, an unidentified nurse, and the two
unidentified correctional officers. Id. Plaintiff lost consciousness. Id.
At some point after plaintiff lost consciousness, Cleland, Myers, an
individual identified as “C/O Huff” (not a named defendant) and another
individual identified as “Lt. Webb” (not a named defendant) woke plaintiff. Id.
Cleland woke plaintiff by slapping plaintiff in the face with enough force to
dislodge his tooth from his mouth. Id. When plaintiff attempted to shield his
face, Cleland yelled “put your fucking hands down.” Id. Cleland then grabbed
plaintiff’s fingers and twisted them until they cracked in three different places. Id.

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Myers then began to knee plaintiff in the back while he was laying on the ground.
Id. Plaintiff did not receive medical attention for his injuries at that time. Id.
On April 11, 2016, plaintiff was taken to an outside hospital for treatment
(the Orthopedic Institute of Southern Illinois). (Doc. 1, pp. 8-9). An unidentified
doctor at the outside hospital prescribed tramadol and ibuprofen. (Doc. 1, p. 8).
Plaintiff contends the treatment he received was inadequate in that he was allergic
to ibuprofen. (Doc. 1, pp. 8-9).
Discussion
Clarification Regarding Defendants
It is necessary to clarify who the defendants are in the instant action. The
first clarification relates to individuals identified as “C/O Huff” and “Lt. Webb.”
Although the body of the Complaint raises allegations with regard these
individuals, they are not identified as defendants in the caption of the complaint
or in section of the complaint that identifies the parties. Because these individuals
are not listed in the caption by name or by Doe designation, they will not be
treated as defendants in this case, and any claims against them should be
considered dismissed without prejudice. See FED. R. CIV. P. 10(a) (noting that
the title of the complaint “must name all the parties”); Myles v. United States,
416 F.3d 551, 551–52 (7th Cir. 2005) (to be properly considered a party a
defendant must be “specif[ied] in the caption”); Id. at 553 (“[It is] unacceptable for
a court to add litigants on its own motion. Selecting defendants is a task for the
plaintiff, not the judge.”).

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The second clarification relates to Davis. Although Davis is identified as a
defendant in the caption of the complaint, plaintiff has not asserted any specific
allegations with respect to Davis. When a defendant is named in the caption, but
not referenced within the body of the complaint, the defendant is not adequately
put on notice of which claims in the complaint, if any, are directed against him.
Accordingly, Davis shall be dismissed from this action without prejudice. See
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Collins v. Kibort, 143
F.3d 331, 334 (7th Cir.1998).
Plaintiff’s Claims
The Court finds it convenient to divide the pro se action into the following
counts. Any other claim that is mentioned in the complaint but not addressed in
this Order should be considered dismissed without prejudice as inadequately
pled under the Twombly pleading standard.
Count 1 - Eighth Amendment claim against Pearce, Wannack, Myers, Holten,
Cleland, and two unidentified correctional officers (John Doe
correctional officers) for using excessive force against plaintiff on or
about March 29, 2016.
Count 2 - Eighth Amendment failure to intervene claim against Moore, Wannack,
Holten, and Bartman for failure to protect plaintiff from the
unauthorized use of force occurring on or about March 29, 2016.
Count 3 - Eighth Amendment claim for deliberate indifference to serious medical
needs against Pearce, Moore, Wannack, Chapman, Holten, Myers,
Cleland, an unidentified nurse (Jane Doe nurse), and two unidentified
correctional officers (John Doe correctional officers) for denying or
delaying plaintiff’s medical treatment for the injuries he sustained on
or about March 29, 2016.

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Count 4 - Eighth Amendment claim for deliberate indifference to a serious
medical need against an unidentified physician who treated plaintiff at
an outside hospital on April 11, 2016.
Count 1
A prison official inflicts cruel and unusual punishment on an inmate, in
violation of the Eighth Amendment, when the official intentionally uses excessive
force against the inmate without penological justification. See Wilkins v. Gaddy,
559 U.S. 34 (2010); Hudson v. McMillian, 503 U.S. 1 (1992). In order to prevail
on an excessive force claim, an inmate must demonstrate that the force used by
the defendant was not applied in a good-faith effort to maintain or restore
discipline, but, rather, was applied maliciously and sadistically to cause harm.
See Hudson, 503 U.S. at 7.

However, not every malicious touch by a prison

official gives rise to a cause of action under the Constitution. Unless the physical
force is “repugnant to the conscience of mankind”, force that is de minimis is not
actionable. Id. at 9–10 (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986))
(internal quotations omitted).
The allegations of the complaint satisfy this standard for screening
purposes with respect to Pearce, Wannack, Myers, Holten, Cleland, and the two
unidentified correctional officers (John Doe correctional officers).
Count 2
To state a failure to protect claim under the Eighth Amendment, plaintiff
must demonstrate that he was incarcerated under conditions posing a substantial
risk of serious harm (i.e., an objective standard), and the defendant acted with
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deliberate indifference to that risk (i.e., a subjective standard). Brown v. Budz,
398 F.3d 904, 909 (7th Cir. 2005) (citing Farmer v. Brennan, 511 U.S. 825, 834
(1994)).
With regard to the objective standard, the Seventh Circuit has held that a
generalized risk of violence does not support an Eighth Amendment claim.
Brown, 398 F.3d at 909; Riccardo v. Rausch, 375 F.3d 521, 525 (7th Cir. 2004).
Plaintiff must allege a “tangible threat to his safety or well-being.” Grieveson v.
Anderson, 538 F.3d 763, 777 (7th Cir. 2008).

The subjective standard is

satisfied where a prison official knows that an attack is “almost certain to
materialize if nothing is done.” Brown, 398 F.3d at 911
Both the objective and subjective elements of this claim are satisfied for
screening purposes with respect to Moore, Wannack, Holten, and Bartman.
Count 3
“A claim of deliberate indifference to a serious medical need contains both
an objective and a subjective component. To satisfy the objective component, a
prisoner must demonstrate that his medical condition is ‘objectively, sufficiently
serious.’ ”

See Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005) (quoting

Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

The subjective component

requires a prisoner to demonstrate that prison officials acted with a “sufficiently
culpable state of mind.” Farmer, 511 U.S. at 834; Greeno, 414 F.3d at 653.
Specifically, the officials “must know of and disregard an excessive risk to inmate
health.” Greeno, 414 F.3d at 653.

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The Seventh Circuit has held that a medical need is “serious” where it has
either “been diagnosed by a physician as mandating treatment” or where the need
is “so obvious that even a lay person would easily recognize the necessity for a
doctor's attention.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
Additionally, as is relevant here, the Seventh Circuit has held that a guard who
uses excessive force on a prisoner has “a duty of prompt attention to any medical
need to which the beating might give rise[.]” Cooper v. Casey, 97 F.3d 914, 917
(7th Cir. 1996).
Plaintiff’s physical injuries following the excessive force incidents satisfy the
objective component for this claim.

Additionally, plaintiff’s allegations suggest

that Pearce, Moore, Wannack, Chapman, Holten, Myers, Cleland, an unidentified
nurse (Jane Doe nurse), and the two unidentified correctional officers (John Doe
correctional officers), responded to plaintiff’s injuries and complaints with
deliberate indifference. Accordingly, Count 3 shall receive further review as to
these defendants.
Count 4
On April 11, 2016, plaintiff was transferred to an outside hospital and
treated by a private physician working for that hospital. Plaintiff contends the
unidentified physician who treated him violated his rights by prescribing a
medication plaintiff was allergic to.

Assuming, that the private physician is a

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“state actor” for purposes of § 1983, 1 the actions alleged in the Complaint – at
most – speak to negligence or medical malpractice.

Such conduct does not

constitute deliberate indifference so as to violate the Eighth Amendment.

See

Sain v. Wood, 512 F.3d 886, 894–95 (7th Cir.2008); Duckworth v. Ahmad, 532
F.3d 675, 679 (7th Cir.2008).
Accordingly, Count 4 shall be dismissed without prejudice. As this is the
only claim directed against the John Doe Physician, he shall be dismissed from
this action without prejudice and terminated as a party in CM/ECF.
Identification of Unknown Defendants
Plaintiff shall be allowed to proceed against the specified unidentified
defendants.

However, these defendants 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 individual 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 to ascertain the identity of those defendants.

Rodriguez v.

Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009).
In order to assist plaintiff in identifying the proper defendants in this
action, the Clerk shall be directed to add Menard's current warden, Jacqueline
Lashbrook, as a defendant, for the sole purpose of identifying unknown

See West v. Atkins, 487 U.S. 42, 51 (1988) (private physicians are state actors when they provide
medical care to prisoners at the prison); Rodriguez v. Plymouth Ambulance Service, 577 F.3d
816, 823 (7th Cir. 2009)(emergency care provided at a private hospital did not qualify as state
action).

1

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defendants through discovery. Once plaintiff discovers their names, he will be
required to amend his complaint to include those defendants, and all defendants
will be served with the summons and amended complaint.
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be REFERRED
to a United States Magistrate Judge for a decision.
The motion for service of process at government expense (Doc. 4) is
TERMINATED AS MOOT. No such motion is necessary for a plaintiff who has
been granted leave to proceed in forma pauperis (“IFP”). The Court shall order
service on all defendants who remain in the action following threshold review
under § 1915A. See 28 U.S.C. § 1915(d).
In light of this Order, plaintiff’s motions for status (Docs. 9 & 10) are
TERMINATED AS MOOT.
Disposition
The Clerk is DIRECTED to TERMINATE DAVIS as a party in CM/ECF.
The Clerk is DIRECTED to TERMINATE JOHN DOE (PHYSICIAN) as a
party in CM/ECF.
The Clerk is DIRECTED to ADD Menard's current warden, JACQUELINE
LASHBROOK, as a defendant, for the sole purpose of identifying unknown
defendants through discovery.
IT IS HEREBY ORDERED that COUNT 1 shall receive further review as to
PEARCE,

WANNACK,

MYERS,

HOLTEN,
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CLELAND,

and

the

TWO

UNIDENTIFIED CORRECTIONAL OFFICERS (JOHN DOE CORRECTIONAL
OFFICERS) in their individual capacities only.
IT IS FURTHER ORDERED that COUNT 2 shall receive further review as
to MOORE, WANNACK, HOLTEN, and BARTMAN in their individual capacities
only.
IT IS FURTHER ORDERED that COUNT 3 shall receive further review as
to PEARCE, MOORE, WANNACK, CHAPMAN, HOLTEN, MYERS, CLELAND,
the

UNIDENTIFIED

NURSE

(JANE

DOE

NURSE),

and

the

TWO

UNIDENTIFIED CORRECTIONAL OFFICERS (JOHN DOE CORRECTIONAL
OFFICERS) in their individual capacities only.
IT IS FURTHER ORDERED that COUNT 4 is DISMISSED without
prejudice for failure to state a claim as to JOHN DOE (PHYSICIAN), the only
party named in connection with this claim, for failure to state a claim.
IT IS HEREBY ORDERED that as to COUNTs 1, 2, and 3 the Clerk of the
Court shall prepare for Defendants PEARCE, MOORE, WANNACK, CHAPMAN,
MYERS, HOLTEN, CLELAND, and LASHBROOK:

(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
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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.
No service shall be made on the unknown defendants until such time as
plaintiff has properly identified them in a Motion for Substitution of Parties.
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 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).

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Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United
States Magistrate Judge for further pre-trial proceedings, including a decision on
plaintiff’s motion for recruitment of counsel (Doc. 3). Further, this entire matter
shall be REFERRED to a 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, even if his application to proceed in forma pauperis is 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).
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

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transmission of court documents and may result in dismissal of this action for
want of prosecution. See FED. R. CIV. P. 41(b).

Judge Herndon
2017.04.12
16:10:18 -05'00'

IT IS SO ORDERED.
DATED: April 12, 2017

United States District Judge

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