Tate v. Lawless et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. MOTION for status 6 filed by James Tate is denied as moot. Signed by Judge Nancy J. Rosenstengel on 3/3/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES TATE,
Plaintiff,
vs.
LIEUTENANT LAWLESS,
C/O PORTER,
D WALLA,
C/O HILLER,
SARGENT HOMAYA,
C/O KING,
C/O MARTIN,
NURSE LAURY,
and BETTY SPILLER,
Defendants.

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–1385 NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff James Tate, an inmate at Pontiac Correctional Center, brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. In his Complaint, Plaintiff
claims that while he was incarcerated at Pinckneyville Correctional Center, he was unjustifiably
attacked by several defendants. (Doc. 1). He also claims that medical treatment of the injuries he
sustained in the attack was inexplicably delayed by the defendants. (Doc. 1).
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–
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(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, 102627 (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, 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).
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations: on October 27,
2015, Plaintiff was attacked in his cell by Lawless, Homaya, King, Porter, Hiller, and Walla.
(Doc. 1, p. 6-7). During the attack, Lawless rushed at Plaintiff, struck him with a closed fist, and
slammed Plaintiff into the back of his cell. Id. Homaya, King, Porter, Hiller, and Walla rushed in
on Plaintiff as well, and when Plaintiff balled up, they slammed him onto his bed and struck him
repeatedly with their hands and knees. (Doc. 1, p. 7). Walla and Hiller then took turns kicking
Plaintiff in his back as Plaintiff cried and screamed for them to stop. Id. During the “45 [minute]
beat down,” Plaintiff was put in hand cuffs while the officers beat him on his face and whole
body. Id. The officers then carried Plaintiff to another cell because he was unable to walk
properly. (Doc. 1, p. 8).

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Once in the cell, which had a cement slab for a bed, Plaintiff was told to lay down face
first and not move. Id. Plaintiff complied with the order and asked for medical treatment multiple
times. Id. The officers denied to seek treatment for the wounds Plaintiff sustained in the attack
despite his requests. Id. Plaintiff remained on the cement slab for some time before he was
visited by Martin, from whom Plaintiff again requested medical attention. Id. Martin responded
that he would advise Nurse Laury to see him during her 4:00 am rounds and told Plaintiff to be
quiet in the meantime. (Doc. 1, p. 9). When Laury conducted her rounds, she passed Plaintiff by
despite his need for medical attention. Id. Plaintiff did not call out to her because he was afraid.
Id. Plaintiff remained on the slab with his injuries untreated until 8:00am when he heard internal
affairs was in the building. Id. He shouted to them, and Spiller, a major, and internal affairs
officers Lin and Furlow came to Plaintiff, asked him what happened, took photographs of his
injuries, and took him to medical where he was treated for bruises and broken bones. Id. Plaintiff
requests monetary damages from the defendants, as well as permanent injunctive relief to
“prevent future harm to Plaintiff” by the defendants. (Doc. 1, p. 10).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into four counts. 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.
Count 1 –

Lawless, Homaya, Walla, Porter, King, and Hiller used excessive force on
Plaintiff in violation of the Eighth Amendment’s prohibition against cruel
and unusual punishment when they assaulted Plaintiff on October 27,
2015.

Count 2 –

Defendants showed deliberate indifference to Plaintiff’s medical needs in
violation of the Eighth Amendment by refusing to arrange for treatment of
the injuries he sustained from the attack that occurred on October 27,
2015.

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Any other intended claim that has not been recognized by the Court is considered
dismissed without prejudice as inadequately pleaded under the Twombly pleading standard.
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 (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 good-faith 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 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.” Wilkins, 559 U.S. 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).
Plaintiff has sufficiently alleged that he was assaulted by Lawless, Homaya, Walla,
Porter, King, and Hiller without penological justification. (Doc. 1, pp. 6-7). Count 1 will
therefore proceed against Lawless, Homaya, Walla, Porter, King, and Hiller.
Count 2
Although Lawless, Homaya, Walla, Porter, King, and Hiller are not medical providers,
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). Thus, the defendants who perpetrated the assault, and then
allegedly prevented Plaintiff from getting immediate medical attention for his injuries, may be

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found liable for deliberate indifference to Plaintiff’s need for medical care. Plaintiff claims he
requested medical care for his injuries and none of the defendants who attacked him arranged for
it. (Doc. 1, p. 8). Therefore, Plaintiff’s claim against Lawless, Homaya, Walla, Porter, King, and
Hiller in Count 2 cannot be dismissed.
As to the other defendants, prison officials violate the Eighth Amendment's proscription
against cruel and unusual punishment when their conduct demonstrates deliberate indifference to
the serious medical needs of an inmate. See Estelle v. Gamble, 429 U.S. 97, 104 (1976);
Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). To establish deliberate indifference to a
medical condition, a prisoner must show a condition that is sufficiently serious (objective
component) and that an official acted with a sufficiently culpable state of mind in failing to
address the condition (subjective component). Id. Whether an injury is serious enough is a very
fact specific inquiry—seriousness may be shown if an ordinary doctor opined an injury
warranted treatment, if an injury significantly impacted an individual’s daily activities, or if an
injury caused chronic or substantial pain, among other things. Id.
As to the subjective component, an official “must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 765 (7th Cir. 2002). If an official
reasonably responds to a risk, even if harm was not averted, deliberate indifference does not
exist. Id. A claim for medical negligence does not amount to deliberate indifference. Gutierrez,
111 F.3d at 1369. Additionally, a reasonable response differs depending on the capacity of the
alleged wrongdoer. A non-medical prison employee—one who for example handles grievances,
or supervises prison operations—will generally not be liable for deliberate indifference if he or
she believes the prisoner is receiving adequate medical care, or takes steps to verify that the

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inmate is receiving care. See Greeno v. Daley, 414 F.3d 645, 655-57 (7th Cir. 2005). Individual
liability may arise on behalf of a non-medical defendant, however, if the defendant is made
aware of a specific constitutional violation via correspondence from the inmate and the
individual declines to take any action to address the situation. See Perez v. Fenoglio, 792 F.3d
768, 781-82 (7th Cir. 2015). Simply put, a prison official may not escape liability by turning a
blind eye to serious harms. Id. at 781 (“deliberate indifference may be found where an official
knows about unconstitutional conduct and facilitates, approves, condones, or ‘turns a blind eye’
to it”).
Plaintiff claims he could not walk properly after the attack and that he was ultimately
treated for bruises and broken bones from the beating he sustained. (Doc. 1, pp. 8-9). Plaintiff’s
alleged injuries are thus sufficient to satisfy the objective component of the deliberate
indifference inquiry. As to the subjective component, Plaintiff claims that he spoke with Martin
about his need for immediate medical attention due to the assault, and despite Martin’s promise
to direct Nurse Laury to see to Plaintiff’s needs on her next set of rounds, Laury did not stop to
treat Plaintiff. (Doc. 1, p. 9). It would seem that either Martin failed to inform Laury of
Plaintiff’s needs to ensure his care, Martin told Laury to care for Plaintiff but she chose not to
treat him, or both Martin and Laury were aware of Plaintiff’s needs and agreed to not see to his
treatment. At this stage, it cannot be determined which scenario took place and whose fault it
was that Plaintiff’s treatment was further delayed. Therefore, Plaintiff’s claims under Count 2
against Martin and Laury will survive.
Finally, Plaintiff also seeks to hold Spiller liable for the wrongs alleged. With respect to
his deliberate indifference to medical needs claim, the allegations in the Complaint indicate that
Spiller reasonably responded to Plaintiff’s need for medical care and took steps to ensure he was

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treated within minutes of hearing Plaintiff’s cries for help and discussing the incident with
Plaintiff. (See Doc. 1, p. 9). Count 2 will therefore not proceed as against Spiller.
If Plaintiff instead seeks to hold Spiller liable for the harms alleged under Count 1 or
Count 2 merely based on her supervisory position as warden, he cannot succeed. “The doctrine
of respondeat superior does not apply to § 1983 actions; thus to be held individually liable, a
defendant must be ‘personally responsible for the deprivation of a constitutional right.’” Sanville
v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Ill. State Police, 251 F.3d
612, 651 (7th Cir. 2001)). See also Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Eades v.
Thompson, 823 F.2d 1055, 1063 (7th Cir. 1987); Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th
Cir. 1983); Duncan v. Duckworth, 644 F.2d 653, 655-56 (7th Cir. 1981). Plaintiff does not claim
Spiller was personally responsible for the attack, nor does he adequately allege Spiller was
deliberately indifferent to his medical needs, so any claim Plaintiff seeks to bring against Spiller
in her individual capacity must fail.
Spiller, in her official capacity as Warden of Pinckneyville, would have been the
appropriate defendant for Plaintiff’s request for a permanent injunction had Plaintiff remained at
Pinckneyville. See Gonzalez v. Feinerman, 663 F.3d 315 (7th Cir.2011) (proper defendant in a
claim for injunctive relief is the government official responsible for ensuring any injunctive
relief is carried out). The fact that Plaintiff is currently incarcerated at Pontiac Correctional
Center, however, dictates that Plaintiff’s request for an injunction to protect him from the
defendants at Pinckneyville is moot. “[W]hen a prisoner who seeks injunctive relief for a
condition specific to a particular prison is transferred out of that prison, the need for relief, and
hence the prisoner's claim, become moot.” Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir. 2004).
See also Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1995). Only if Plaintiff can show a

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realistic possibility that he would again be incarcerated at Pinckneyville under the conditions
described in the Complaint, would it be proper for the Court to consider injunctive relief. See
Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011) (citing Ortiz v. Downey, 561 F.3d 664, 668
(7th Cir. 2009)). Because he has failed to do so, and has otherwise failed to state a claim against
Spiller, she will be dismissed from this action.
Pending Motions
Plaintiff has filed a Motion to Appoint of Counsel (Doc. 3), which is REFERRED to
United States Magistrate Judge Donald G. Wilkerson for a decision.
Plaintiff has also filed a Motion for Status Update, which is DENIED as moot, as this
Order provides the status of this action.
Disposition
IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against LAWLESS,
HOMAYA, WALLA, PORTER, KING, and HILLER.
IT IS FURTHER ORDERED that COUNT 2 shall PROCEED against LAWLESS,
HOMAYA, WALLA, PORTER, KING, HILLER, MARTIN, and LAURY.
IT IS FURTHER ORDERED that SPILLER shall be DISMISSED without prejudice
from this action for failure to state a claim upon which relief can be granted.
IT IS FURTHER ORDERED that as to COUNTS 1 and 2, the Clerk of Court shall
prepare for LAWLESS, HOMAYA, WALLA, PORTER, KING, HILLER, MARTIN, and
LAURY: (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 any defendant fails to sign and return the Waiver of

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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.
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 each defendant (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 the defendant 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 United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings, including a decision on Plaintiff’s
Motion to Recruit Counsel (Doc. 3). Further, this entire matter shall be REFERRED to
United States Magistrate Judge Donald G. Wilkerson 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.

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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, despite the fact
that his application to proceed in forma pauperis has been granted. See 28 U.S.C.
§ 1915(f)(2)(A).
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: March 3, 2017
__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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