Schollmeyer v. Lind et al

Filing 8

ORDER REASSIGNING CASE. Case reassigned to Judge J. Phil Gilbert. Judge Nancy J. Rosenstengel no longer assigned to case. ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Nancy J. Rosenstengel on 5/24/2017. (tjk)

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

LARRY R. SCHOLLMEYER,
Plaintiff,
vs.
OFFICER LIND,
JOHN DOE 1,
MADISON COUNTY SHERIFF’S
DEPARTMENT, and
ILLINOIS DEPARTMENT OF
CORRECTIONS,
Defendants.

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Case No. 17 cv–0407 NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Larry R. Schollmeyer, an inmate in Graham Correctional Center, brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 that he sustained
during his arrest. 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
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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).
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
On or about January 18, 2017, Plaintiff was enjoying a drink alone at Doc’s Bar and Grill
in Cottage Hills, Illinois. (Doc. 1, p. 5). After finishing his drink, Plaintiff left the bar to walk to
his residence. Id. He fell, and an unknown woman attempted to help him get up. Id. Just then,
Officer Lind and an unknown Bethalto police officer arrived and confronted Plaintiff. Id. They
told Plaintiff he was under arrest. Id. They then slammed him to the ground, stepping on his
shoulder, arm, and hand. Id. Plaintiff alleges that he posed no threat at the time. Id. During this
incident, Plaintiff suffered three breaks in his hand and arm, as well as a dislocated shoulder. Id.
Plaintiff was then detained at the Madison County Jail, where he was not given any
medical treatment for 72 hours. (Doc. 1, p. 6). Plaintiff alleges that the Illinois Department of
Corrections has only taken him to an outside doctor twice. Id.

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Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into three 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. The following
claims survive threshold review:
Count 1 –

Lind and John Doe 1 used excessive force while arresting Plaintiff
on January 18, 2017, in violation of the Eighth Amendment;

Count 2 –

The Madison County Sheriff’s Department was deliberately
indifferent to Plaintiff’s serious medical needs in violation of the
Eighth Amendment when Plaintiff’s injuries were allowed to go
three days without any treatment.

Count 3 –

The Illinois Department of Corrections was deliberately indifferent
to Plaintiff’s serious medical needs in violation of the Eighth
Amendment when they only referred him to an outside specialist
twice.

Plaintiff has not clearly alleged what his status was at the time of the relevant incident.
Although claims brought pursuant to Section 1983 involving detainees arise under the Fourteenth
Amendment and not the Eighth Amendment, see Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir.
2000), the Seventh Circuit has “found it convenient and entirely appropriate to apply the same
standard to claims arising under the Fourteenth Amendment (detainees) and Eighth Amendment
(convicted prisoners) ‘without differentiation.’” Board v. Farnham, 394 F.3d 469, 478 (7th Cir.
2005) (quoting Henderson v. Sheahan, 196 F.3d 839, 845 n. 2 (7th Cir. 1999)); see also Forrest
v. Prine, 620 F.3d 739 (7th Cir. 2010). In the prison context, the Eighth Amendment is violated
where there is an “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312,
319 (1986). Force is considered excessive where it is not utilized in “a good-faith effort to
maintain or restore discipline,” but instead is applied “maliciously and sadistically” to cause
harm. Hudson v. McMillian, 503 U.S. 1, 7 (1992).
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As to Count 1, claims of excessive force during an arrest are analyzed under the Fourth
Amendment’s “reasonableness” standard. See Graham v. Connor, 490 U.S. 386 (1989). In
determining the reasonableness of the force used, a court will consider the facts and
circumstances of the case, the severity of the crime at issue, the threat posed by the suspect to the
safety of the officers or others, and whether the suspect was attempting to resist or evade arrest.
The objective reasonableness of the officers’ response will be based upon the information the
officers had at the time of the arrest. See Lawrence v. Kenosha Cnty., 391 F.3d 837, 843 (7th Cir.
2004). Here, Plaintiff has alleged that he was not a threat at the time of his arrest, but despite
this, the officers threw him to the ground and stepped on his arm, breaking it in three places and
dislocating his shoulder. At this stage, this is sufficient to make a claim for excessive force.
Turning to Count 2, prison officials impose cruel and unusual punishment in violation of
the Eighth Amendment when they are deliberately indifferent to a serious medical need. Estelle
v. Gamble, 429 U.S. 97, 104 (1976); Chatham v. Davis, 839 F.3d 679, 684 (7th Cir. 2016). In
order to state a claim for deliberate indifference to a serious medical need, an inmate must show
that he 1) suffered from an objectively serious medical condition; and 2) that the defendant was
deliberately indifferent to a risk of serious harm from that condition. Petties v. Carter, 836 F.3d
722, 727 (7th Cir. 2016). An objectively serious condition includes an ailment that has been
“diagnosed by a physician as mandating treatment,” one that significantly affects an individual’s
daily activities, or which involves chronic and substantial pain. Gutierrez v. Peters, 111 F.3d
1364, 1373 (7th Cir. 1997). The subjective element requires proof that the defendant knew of
facts from which he could infer that a substantial risk of serious harm exists, and he must
actually draw the inference. Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016) (citing Farmer v.
Brennan, 511 U.S. 825, 837 (1994)).

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“Delaying treatment may constitute deliberate indifference if such delay exacerbated the
injury or unnecessarily prolonged an inmate’s pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th
Cir. 2012) (internal citations and quotations omitted); see also Farmer v. Brennan, 511 U.S. 825,
842 (1994). The Eighth Amendment does not give prisoners entitlement to “demand specific
care” or “the best care possible,” but only requires “reasonable measures to meet a substantial
risk of serious harm.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Deliberate
indifference may also be shown where medical providers persist in a course of treatment known
to be ineffective. Berry v. Peterman, 604 F.3d 435, 441-42 (7th Cir. 2010); Greeno v. Daley, 414
F.3d 645, 655 (7th Cir. 2005).
Although Plaintiff’s allegations are bare bones, he has alleged that he suffered from a
broken arm and a dislocated shoulder. That is a plausible allegation that Plaintiff suffered from a
serious medical need. Additionally, Plaintiff has alleged that after being placed in the Madison
County Jail, he received no medical treatment for his injuries for three days. If that is true,
Plaintiff has plausibly alleged that he suffered from deliberate indifference, and his claim will be
allowed to proceed.
But Count 3 will be dismissed at this time without prejudice. As an initial matter, the
Illinois Department of Corrections is not a proper defendant. Plaintiff cannot maintain his suit
against the Illinois Department of Corrections, because it is a state government agency. The
Supreme Court has held that “neither a State nor its officials acting in their official capacities are
‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). See also
Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001) (Eleventh Amendment bars suits against
states in federal court for money damages); Billman v. Ind. Dep’t of Corr., 56 F.3d 785, 788 (7th
Cir. 1995) (state Department of Corrections is immune from suit by virtue of Eleventh

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Amendment); Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 427 (7th Cir. 1991) (same); Santiago v.
Lane, 894 F.2d 219, 220 n. 3 (7th Cir. 1990) (same).
And even if the Department of Corrections was a proper defendant, Plaintiff has still
failed to state a claim. Plaintiff’s sole allegation is that he was referred to an outside provider
twice. That allegation standing alone does not make Plaintiff’s claim of deliberate indifference
plausible. Plaintiff has not described what his condition was at the time he entered the
Department of Corrections; it is not completely clear to the Court that the medical need in this
claim is even identical to the one at issue in Count 2. It is also not clear why referral to an
outside specialist would tend to show that the Department inferred that Plaintiff was at risk of
serious harm and then refused to act on that inference. Referral to an outside specialist implies
some treatment, and in the absence of further allegations, it is not plausible that the treatment
Plaintiff received amounted to deliberate indifference. Defendant Illinois Department of
Corrections is DISMISSED with prejudice as immune from suit. Count 3 is otherwise
DISMISSED without prejudice for failure to state a claim.
Administrative Order 188
Pursuant to Administrative Order 188, cases in this district may be reassigned from time
to time to maintain the balance in the division of cases among the judges in this district.
Specifically, Senior Judge J. Phil Gilbert has recused himself from all participation in any cases
in which the State of Illinois or any of its agencies and employees (in their official capacities) is
a party. As Defendant Illinois Department of Corrections is dismissed from this action with
prejudice as a party immune from suit, and because no other State of Illinois Defendants remain
at this time, this case is TRANSFERRED to Judge Gilbert for all further proceedings.

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Disposition
IT IS HEREBY ORDERED that Counts 1 and 2 survive threshold review. Defendant
Illinois Department of Corrections is DISMISSED with prejudice as being immune from suit.
Count 3 is otherwise DISMISSED without prejudice for failure to state a claim. This case is
TRANSFERRED to Senior Judge J. Phil Gilbert for all further proceedings.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants Lind and Madison
County Sheriff’s Department: (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 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.
Service shall not be made on John Doe 1 until such time as Plaintiff has identified him by
name in a properly filed amended complaint. Plaintiff is ADVISED that it is Plaintiff’s
responsibility to provide the Court with the names and service addresses for John Doe 1.
IT IS FURTHER ORDERED that, 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.

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IT IS FURTHER ORDERED that 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 States
Magistrate Judge for further pre-trial proceedings.
Further, this entire matter is REFERRED to a United States Magistrate Judge for
disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
parties consent to such a referral.
IT IS FURTHER ORDERED that 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, notwithstanding that his application to proceed in forma pauperis has
been 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,

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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 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: May 24, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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