Jones v. Adamson et al

Filing 11

MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams, Granting 4 MOTION for Service of Process at Government Expense filed by Clifford Jones. Signed by Judge David R. Herndon on 3/6/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CLIFFORD JONES,
# M-42078,
Plaintiff,
vs.

Case No. 17-cv-00063-DRH

OFFICER ADAMSON,
OFFICER BANGERT,
OFFICER JOHNSON,
and UNKNOWN PARTY,
Defendants.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Clifford Jones, an inmate who is currently incarcerated at Pontiac
Correctional Center (“Pontiac”), brings this civil rights action pursuant to 42
U.S.C. § 1983 for violations of his Eighth Amendment rights at Lawrence
Correctional Center (“Lawrence”). (Doc. 1). In the complaint, plaintiff claims that
Officer Adamson subjected him to the unauthorized use of force on December 17,
2016. (Doc. 1, p. 5). Officers Bangert and Johnson allegedly failed to intervene
and protect him. Id. All three officers and an unknown nurse (“Nurse Jane Doe”)
then denied him medical treatment for his injuries. Id. Plaintiff seeks monetary
damages against the defendants for their alleged violations of his Eighth
Amendment rights. (Doc. 1, p. 6).
The complaint (Doc. 1) is now subject to preliminary review under 28
U.S.C. § 1915A, which provides:
1

(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, 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 supporting exhibits, the Court deems it
appropriate to dismiss certain portions of this action. The Complaint otherwise
survives screening under § 1915A.
Complaint
During his incarceration at Lawrence on December 17, 2016, plaintiff
asked to speak with a member of the prison’s crisis team about mental health

2

issues that he was experiencing (Doc. 1, p. 5). In response, Officers Adamson and
Bangert escorted him to the shower area. Id. There, he waited in a shower for
his meeting with a crisis counselor. Id.
After the meeting, plaintiff was informed that he would be relocated to a cell
on the lower tier of the C Wing. (Doc. 1, p. 5). Plaintiff objected to this transfer
decision. Id. He explained that he had “words” with another inmate who was
housed there. Id.
Officer Adamson told plaintiff that he would be transferred there “whether
[he] liked it or not.”

(Doc. 1, p. 5).

When plaintiff asked to speak with a

lieutenant, Officer Adamson stated, “Don’t make me come drag you outta [there].”

Id. When plaintiff again asked to speak with a lieutenant, Officer Adamson used
his key to open the shower door, dragged plaintiff in “a very aggressive manner,”
slammed him to the floor, and repeatedly punched him in the face. Id. Then, the
officer placed plaintiff in a chokehold while he was cuffed behind his back. Id.
Officers Bangert and Johnson stood watching.

(Doc. 1, p. 5).

Plaintiff

screamed for help. Id. In response, they smiled and told plaintiff that he had to
learn his lesson. Id. Both officers refused to intervene. Id.
Officer Adamson then picked plaintiff up by the cuffs and removed them.
(Doc. 1, p. 5). He instructed plaintiff to step out of the shower and walk to Cell
#19. Id. Plaintiff refused, instead asking for medical treatment for undisclosed
injuries.

Id. The prison’s “orange crush” tactical team came to the area and

ordered plaintiff to exit the shower and walk to Cell #19. Id. He tried to tell them

3

what Officer Adamson had done, but the team members would not listen. Id.
They eventually sprayed him with pepper spray. (Doc. 1, pp. 5, 9-10).
Plaintiff asked Officer Johnson if he could at least get “decontaminated,”
and the officer denied his request. (Doc. 1, p. 5). An unknown nurse (“Nurse
Jane Doe”) also denied plaintiff’s request for medical treatment following the
incident, declaring him “OK” after examining him. (Doc. 1, pp. 5, 9-10).
Plaintiff filed two emergency grievances on December 23, 2016. (Doc. 1,
pp. 7-10). In one, he complained about Officer Adamson’s use of excessive force
against him 6 days earlier. (Doc. 1, pp. 7-8). In the other, Plaintiff complained
about the subsequent denial of medical treatment for his injuries. (Doc. 1, pp. 910).

He received no response to either grievance and commenced this action

while the grievances were admittedly “still pending” on January 23, 2017. 1 (Doc.
1, pp. 4, 7-10). He then transferred from Lawrence to Pontiac shortly thereafter.
(Doc. 10).
Discussion
To facilitate the orderly management of future proceedings in this case, and
in accordance with the objectives of Federal Rules of Civil Procedure 8(e) and
10(b), the Court deems it appropriate to organize the claims in Plaintiff’s pro se
Complaint (Doc. 1) into the following counts:
1

The Court saves for another day and a more complete record the issue of whether Plaintiff
completely exhausted all available administrative remedies before filing suit. See 42 U.S.C. §
1997e(a). See Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1174–1175 (7th Cir. 2010) (finding
that an inmate failed to exhaust his administrative remedies after waiting only two days to file suit
after he submitted an emergency grievance). But see Muhammad v. McAdory, 214 F. App’x 610,
612–613 (7th Cir. 2007) (district court committed reversible error in granting summary judgment
on exhaustion grounds where inmate waited 51 days after filing emergency grievance with no
response to file suit).

4

Count 1 -

Officer Adamson used excessive force against plaintiff at
Lawrence on December 17, 2016, in violation of his
rights under the Eighth Amendment.

Count 2 -

Officers Bangert and Johnson failed to intervene and
protect plaintiff from Officer Adamson’s unauthorized
use of excessive force against plaintiff at Lawrence on
December 17, 2016, in violation of his rights under the
Eighth Amendment.

Count 3 -

Officers Adamson, Bangert, and Johnson and Nurse
Jane Doe denied plaintiff medical treatment for the
injuries he sustained at Lawrence on December 17,
2016, in violation of his rights under the Eighth
Amendment.

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 as to their merits.
Claims Subject to Further Review
Count 1
A prison guard’s intentional use of excessive force 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 bringing an excessive force claim 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)). The allegations in the
complaint satisfy this standard for screening purposes.

5

Count 1 shall receive

further review against Officer Adamson, who is the only defendant named in
connection with the claim. This claim shall be dismissed with prejudice against
Officer Bangert, Officer Johnson, and Nurse Jane Doe because they were not
mentioned in connection with any use of excessive force against Plaintiff.
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
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)). Both the objective and subjective elements of this claim are satisfied for
screening purposes.
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).

Plaintiff alleges that he was

actually restrained, punched, and thrown to the floor by Officer Adamson. (Doc.
1, p. 5). When construing the allegations in the pro se complaint liberally in favor
of plaintiff, as this Court is required to do at this stage, the Court finds that the
violence plaintiff experienced on December 17, 2016, is sufficient to satisfy this
objective standard at screening.

6

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. The allegations suggest that Officers Bangert and Johnson knew that Officer
Adamson was using excessive force against plaintiff because they watched the
incident unfold while refusing to intervene on Plaintiff’s behalf. (Doc. 1, p. 5).
They wanted him to learn a lesson. Id. Given these allegations, the Court cannot
dismiss Count 2 against Officers Bangert and Johnson. However, this claim shall
be dismissed with prejudice against Officer Adamson and Nurse Jane Doe
because they were not named in connection with a failure to protect claim.
Claims Subject to Dismissal
Count 3
Prison officials violate the Eighth Amendment’s proscription against cruel
and unusual punishment when they respond to an inmate’s serious medical needs
with deliberate indifference. Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir.
1997). To state a claim, the plaintiff must show that he suffered from a serious
medical need, and state officials acted with deliberate indifference to his need.

Sherrod v. Lingle, 223 F.3d 605, 619 (7th Cir. 2000).
The allegations in the Complaint do not suggest that plaintiff suffered from
an objectively serious medical need as a result of the incident that occurred on
december 17, 2016. 2

The determination of whether an injury is objectively

serious is fact-specific. Gutierrez, 111 F.3d at 1369. Seriousness is shown where
2

Plaintiff asserts no claim based on the treatment he received or was denied for his mental health
issues on December 17, 2016. Therefore, this claim is limited to the denial of treatment for
injuries Plaintiff sustained as a result of Officer Adamson’s conduct.

7

a doctor indicates that the injury requires treatment, significantly impacts daily
activities, results in chronic or substantial pain, or where the need for treatment
would be obvious to a lay person. Id. Plaintiff does not describe any particular
injuries in his Complaint. (Doc. 1, p. 5). His exhibits refer to the orange crush
tactical team’s use of pepper spray, and the resulting eye irritation and blurry
vision that followed. (Doc. 1, pp. 9-10). However, the same exhibit reveals that
the nurse immediately examined Plaintiff and declared that he was “OK.” (Doc. 1,
p. 9). Under the circumstances, the Complaint does not satisfy the objective or
subjective components of this claim.

Count 3 shall be dismissed without

prejudice against the defendants for failure to state a claim upon which relief may
be granted.
Pending Motions
1.

Motion for Leave to Proceed i n forma pauperis (Doc. 2)
Plaintiff’s IFP motion shall be addressed in a separate Order of this Court.

2.

Motion for Recruitment of Counsel (Doc. 3)
Plaintiff’s motion for recruitment of counsel shall be REFERRED to a

United States Magistrate Judge for a decision.
3.

Motion for Service of Process at Government Expense (Doc. 4)
Plaintiff’s motion for service of process at government expense is

GRANTED. Service shall be ordered below on those defendants who remain in
this action pursuant to this screening order.

8

Disposition
IT IS HEREBY ORDERED that COUNT 1 is subject to further review
against defendant OFFICER ADAMSON.

This count is DISMISSED with

prejudice against defendants OFFICER BANGERT, OFFICER JOHNSON, and
NURSE JANE DOE for failure to state a claim against these defendants upon
which relief may be granted.
IT IS ORDERED that COUNT 2 is subject to further review against
Defendants OFFICER BANGERT and OFFICER JOHNSON.

This count is

DISMISSED with prejudice against Defendant OFFICER ADAMSON and NURSE
JANE DOE for failure to state a claim against these defendants upon which relief
may be granted.
IT IS ORDERED that COUNT 3 is DISMISSED without prejudice against
defendants OFFICER ADAMSON, OFFICER BANGERT, OFFICER JOHNSON
and NURSE JANE DOE for failure to state a claim upon which relief may be
granted against the defendants.
As to COUNTS 1 and 2, the Clerk of Court shall prepare for defendants
OFFICER ADAMSON (#7010), OFFICER BANGERT (#7842) and OFFICER
JOHNSON: (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 (Doc. 1), 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
9

(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 to 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 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

10

States Magistrate Judge for further pre-trial proceedings, including a decision on
the motion for recruitment of counsel (Doc. 3), pursuant to Local Rule 72.2(b)(2)
and 28 U.S.C. § 636(c), if all parties consent to such a referral. 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, regardless of whether 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

11

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

Digitally signed by
Judge David R.
Herndon
Date: 2017.03.06
14:15:39 -06'00'

IT IS SO ORDERED.
DATED: March 6, 2017

United States District Judge

12