Watson v. Baldwin, et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 10/31/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SVONDO WATSON,
#B-67687,
Plaintiff,
vs.
JOHN BALDWIN,
KIMBERLY BUTLER,
FRANK EOVALDI,
KELLIE ELLIS, and
JOHN DOE,
Defendants.

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Case No. 17-CV-873-MJR

MEMORANDUM AND ORDER

REAGAN, Chief Judge:
Plaintiff Svando Watson, an inmate currently housed at Menard Correctional Center
(“Menard”), filed this pro se action pursuant to 42 U.S.C. § 1983. Plaintiff brings claims relating
to an alleged excessive force incident occurring on August 15, 2015. In connection with these
claims, Plaintiff sues John Baldwin (IDOC director), Kimberly Butler (Menard’s former
warden), Frank Eovaldi (described as a major and a lieutenant at Menard), Kellie Ellis (described
as a lieutenant at Menard), John Doe # 1 (first Menard correctional officer involved in the
excessive force incident), and John Doe # 2 (second Menard correctional officer involved in the
excessive force incident). 1 In his request for relief, Plaintiff seeks monetary damages and any

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According to the Complaint, two unidentified correctional officers were involved in the excessive force incident.
(Doc. 1, pp. 4, 8-15). To facilitate the orderly progress of this action going forward, the Clerk shall be
directed to rename the John Doe Defendant as follows: (1) John Doe # 1 (first Menard
correctional officer involved in the excessive force incident) and (2) John Doe # 2 (second Menard
correctional officer involved in the excessive force incident). See FED. R. CIV. P. 21 (“the court may
at any time, on just terms, add or drop a party”).

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further relief that the Court deems just. (Doc. 1, p. 14). However, in the body of the Complaint,
Plaintiff suggests that he needs surgery to repair injuries related to the excessive force incident.
(Doc. 1, p. 9).
This case is now before the Court for a preliminary review of the Complaint (Doc. 1)
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, 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).

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Preliminary Matter – Motion to Supplement
Plaintiff has filed a Motion for Leave to Amend/Supplement the Complaint. (Doc. 6).
Plaintiff seeks to “have the record reflect that defendants John Baldwin and Kimberly Butler for
the purpose of discovery are being sued only in their official capacity.” (Doc. 6, p. 1). Plaintiff
further states that all other defendants are being sued in their individual and official capacities.
Id.
The motion shall be denied for two reasons. First, the Court does not accept piecemeal
amendments to a complaint. Second, the request is unnecessary. The Court addresses the
capacity in which each defendant may be sued in this screening order. Accordingly, Plaintiff’s
request is DENIED.
The Complaint
Plaintiff’s Prior Health History
Plaintiff suffers from a degenerative disease called cervical spondylosis. (Doc. 1, p. 8).
The vertebrae in Plaintiff’s neck (2, 3, 4, 5, 6, and 7) are not properly aligned. (Doc. 1, p. 9).
Accordingly, any aggravation to the neck causes the vertebrae to pinch the nerves rendering a
loss of strength in the arms. Id. Plaintiff contends that the alleged excessive force incident
(described below) has accelerated and/or worsened the permanent nerve damage to Plaintiff’s
neck. Id. Plaintiff claims he needs surgery to repair the nerve damage and relieve the pain he is
suffering in his neck and left arm. Id.
Excessive Force Incident
On August 15, 2015, at approximately 5:30 p.m., Sadi Horemann (a nurse working at
Menard) lodged a complaint against Plaintiff. (Doc. 1, p. 7). Nurse Horemann alleged that
Plaintiff groped her and made an inappropriate comment. Id.

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At approximately 6:00 p.m., Plaintiff was approached by Sergeant Demond (not a party
to this action), who instructed Plaintiff to step outside. Id. Plaintiff fully complied with the order
and stepped outside. Id. Plaintiff was immediately grabbed on the left arm by Eovaldi, a
lieutenant or major, and Ellis, also a lieutenant. Id. Eovaldi and Ellis escorted Plaintiff to the
elevator, without placing him in handcuffs. (Doc. 1, p. 8). Eovaldi ordered Plaintiff to get on his
knees and Plaintiff complied. Id. Eovaldi then pushed Plaintiff; face first, onto the floor of the
elevator. Id. Eovaldi kicked Plaintiff in the right side of his body, striking Plaintiff’s ribs and
knocking the wind out of Plaintiff. Id. Eovaldi continued kicking Plaintiff while he was on the
floor. Id. John Doe # 1, a correctional officer, also kicked Plaintiff while he was lying on the
floor. Id. John Doe # 1 repeatedly kicked Plaintiff in his buttocks and right thigh. Id. He also
kicked Plaintiff between his legs, striking Plaintiff in the testicles. Id. At some point, Eovaldi
placed Plaintiff in handcuffs. Id. While Plaintiff was handcuffed, John Doe # 1 kicked Plaintiff in
the side of his head twice. Id. The first kick caused Plaintiff’s neck to make a cracking sound and
Plaintiff felt a numbing sensation in both arms. Id.
Ellis was present and observed the use of excessive force while Plaintiff was in the
elevator. (Doc. 1, p. 9). Although Plaintiff was crying out in pain and asking for help, Ellis took
no action to intervene on Plaintiff’s behalf. Id.
Subsequently, Plaintiff was dragged to the north two segregation building and placed in
the strip search cage. (Doc. 1, p. 10). Plaintiff was still handcuffed. Id. Eovaldi ordered Plaintiff
to get on his knees and Plaintiff complied. Id. Eovaldi and two correctional officers (John Doe #
1 and John Doe # 2) entered the strip search cage. Id. Eovaldi removed the handcuffs from
Plaintiff. Id. Eovaldi and the John Doe officers began to beat Plaintiff again. Id. When the
beating stopped, one of the John Doe officers ordered Plaintiff to stand up, yelling, “Fight back

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nigger. Come on tough guy. You’re a bitch. You’re a pussy. Fight back. Come on.” Id. Plaintiff
refused to fight back. Id.
Eovaldi then ordered Plaintiff to remove his clothes. (Doc. 1, p. 11). Plaintiff complied.
Id. Eovaldi handcuffed Plaintiff, with his hands behind his back. Id. Eovaldi grabbed the
handcuffs, lifting Plaintiff’s arms into the air. Id. Eovaldi lifted the handcuffs so high, Plaintiff
felt that his shoulders were about to be dislocated. Id. Eovaldi then used a second pair of
handcuffs to handcuff Plaintiff’s arms to the bars in the strip search cage. Id. Plaintiff was left
alone, naked, and cuffed to the cage for approximately one hour. Id. Plaintiff describes being on
“the tips of his toes like a piece of meat in a slaughter house.” Id.
Internal affairs interviewed Plaintiff on two separate occasions and on August 16, 2015,
Plaintiff was transferred to Pontiac Correctional Center (“Pontiac”). (Doc. 1, pp. 12). While at
Pontiac, Plaintiff was urinating blood. Id. Plaintiff was eventually examined by the medical
director, Dr. Tilden. Plaintiff told Dr. Tilden that he was assaulted by a lieutenant and two
correctional officers. Id. According to the Complaint, X-rays would later reveal that Plaintiff had
a small hair line fracture at his ninth rib. Id. 2 Plaintiff was told that the only thing doctors could
do was attempt to treat Plaintiff’s pain. (Doc. 1, p. 13). Accordingly, Plaintiff’s medication was
altered to assist with pain management. (Doc. 1, pp. 12-13).
Subsequently, Plaintiff filed a grievance that was directed to Baldwin. (Doc. 1, pp. 13,
25-42).

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A letter denying Plaintiff’s grievance suggests that Plaintiff’s rib was not fractured. (Doc. 1, p. 42). However,
Plaintiff has also attached an affidavit from another inmate stating that he overheard an x-ray technician and a
physician tell Plaintiff that he had a fractured rib. (Doc. 1, p. 22).

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Dismissal of Certain Defendants and Official Capacity Claims
Baldwin and Butler
Plaintiff has named Baldwin, IDOC’s director, and Butler, Menard’s former warden, as
defendants in the Complaint. The Complaint, however, does not include any allegations
establishing that either Defendant was personally involved in the underlying constitutional
violations.
Plaintiff alleges that he submitted a grievance to Baldwin, complaining about the use of
excessive force, after the incident occurred. This allegation, standing alone, is insufficient to
subject Baldwin to liability in his individual capacity. See Estate of Miller by Chassie v.
Marberry, 847 F.3d 425, 428-29 (7th Cir. 2017); Aguilar v. Gaston-Camara, 2017 WL 2784561,
*4 (7th Cir. 2017); Perez v. Fenoglio, 792 F.3d 768, 781-82 (7th Cir. 2015). No allegations are
directed against Butler; she is only referenced in Plaintiff’s case caption. This is insufficient to
bring an individual capacity claim against Butler. See Collins v. Kibort, 143 F.3d 331, 334 (7th
Cir. 1998); Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995).
Baldwin and Butler are also not appropriate official capacity defendants. As is set forth
below, Jacqueline Lashbrook, Menard’s current warden, is the appropriate official capacity
defendant for purposes of (1) assisting in discovery pertaining to identification of the unknown
defendants and (2) implementing any injunctive relief that might be ordered.
Accordingly, Baldwin and Butler shall be dismissed from the action, without prejudice,
for failure to state a claim upon which relief can be granted.
Official Capacity Claims
Plaintiff may not pursue any official capacity claims against the remaining Defendants
(Eovaldi, Ellis, John Doe # 1, and John Doe # 2). Individuals are not “persons” in their official

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capacities under § 1983. Plaintiff can only bring claims against individuals that were personally
involved in the deprivation of which he complains. See Sanville v. McCaughtry, 266 F.3d 724,
740 (7th Cir. 2001). Therefore, to the extent that Plaintiff has attempted to bring claims against
Eovaldi, Ellis, John Doe # 1, and/or John Doe #2 in their official capacities, those claims shall be
dismissed.
Merits Review Under § 1915(A)
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into the following 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
designation of these counts does not constitute an opinion regarding their merit.
Count 1 –

Eighth Amendment excessive force claim against Eovaldi, John Doe # 1,
and John Doe # 2 for beating Plaintiff on August 15, 2015.

Count 2 –

Eighth Amendment claim against Ellis for failing to intervene and protect
Plaintiff as he was beaten by prison officials on August 15, 2015.

Count 3 –

Eighth Amendment claim against Eovaldi, John Doe # 1, and John Doe #
2 for failing to ensure that Plaintiff received medical care for the injuries
he sustained on August 15, 2015.

Count 1
The Eighth Amendment to the United States Constitution prohibits cruel and unusual
punishment. Gillis v. Litscher, 468 F.3d 488, 491 (7th Cir. 2006) (citing Robinson v. California,
370 U.S. 660 (1962)). The intentional use of excessive force by prison guards against an inmate
without penological justification constitutes cruel and unusual punishment. See Wilkins v. Gaddy,
559 U.S. 34 (2010); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). The “core
requirement” of an excessive force claim is that the prison guard “used force not in a good-faith
effort to maintain or restore discipline, but maliciously and sadistically to cause harm.”
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Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir. 2009) (quoting Whitley v. Albers, 475 U.S.
312, 319 (1986)). See also Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Santiago v. Walls, 599
F.3d 749, 757 (7th Cir. 2010).
The allegations in the Complaint support an excessive force claim against the three
Defendants named in connection with this claim, i.e., Eovaldi, John Doe # 1, and John Doe # 2.
Plaintiff alleges that he was beaten by these Defendants on August 15, 2015. At the time,
Plaintiff claims he was in compliance with Defendants orders and/or was not resisting.
Additionally, portions of the assault occurred while Plaintiff was handcuffed, on his knees,
and/or laying on the floor. Count 1 is subject to further review against Eovaldi, John Doe # 1,
and John Doe # 2.
Count 2
Prison officials may be liable for failing to intervene and take reasonable steps to stop the
use of excessive force by fellow officers, if they have “a realistic opportunity to intervene and
prevent the harm from occurring” but fail to do so. Green v. Chvala, 567 F. App’x. 458 (7th Cir.
2014) (quoting Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009); Yang v. Hardin, 37 F.3d
282, 285 (7th Cir. 1994)). In the Complaint, Plaintiff alleges that Ellis was present while Eovaldi
and the unidentified correctional officers beat Plaintiff in the elevator on August 15, 2015. He
allegedly stood by and watched as all three officers used excessive force against Plaintiff. These
allegations support an Eighth Amendment failure to intervene claim against Ellis. Accordingly,
Count 2 shall receive further review as to Ellis.
Count 3
State officials also violate the Eighth Amendment when they act with deliberate
indifference to an inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976);

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Chatham v. Davis, 839 F.3d 679, 684 (7th Cir. 2016). To state a claim, a plaintiff must
demonstrate that he suffered from a serious medical condition (i.e., objective standard) and the
state official responded with deliberate indifference (i.e., subjective standard). Petties v. Carter,
836 F.3d 722, 727-28 (7th Cir. 2016) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994);
Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010)). The Complaint includes allegations
against that satisfy both components of this claim for screening purposes as to Eovaldi, John Doe
# 1, and John Doe # 2.
After kicking and punching Plaintiff all over his body, including his head, neck, ribs, and
genitals, Defendants did not immediately seek medical care for Plaintiff. Instead, Plaintiff was
handcuffed, naked, to the strip search cage. Plaintiff claims he was restrained in such a way that
he was standing on the tips of his toes like a piece of meat. Plaintiff was left in this position for
an hour and was eventually transferred to Pontiac. At Pontiac, Plaintiff was urinating blood and
x-rays revealed a fractured rib. These allegations, construed liberally in favor of Plaintiff for
screening purposes, satisfy the objective and subjective components of this claim against
Eovaldi, John Doe # 1, and John Doe # 2. Accordingly, Count 3 shall receive further review
against them.
Request for Injunctive Relief
In the body of the Complaint, Plaintiff suggests that he requires surgery to repair preexisting injuries that were worsened by the alleged assault. (Doc. 1, pp. 8-9). The Court
construes this as a request for injunctive relief at the close of the case. If Plaintiff needs medical
care during the pendency of this action or wishes to seek some other type of interim relief, he
should file a motion for a TRO or a preliminary injunction pursuant to Rule 65(a) or (b)
indicating the exact form of relief he seeks, the reasons why he seeks said relief, and the factual

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allegations supporting his request. He may do so at any time during the pending action.
Further, with respect to Plaintiff's request for injunctive relief, the warden is the
appropriate party. Gonzales v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011). Accordingly, the
Clerk will be directed to add Jacqueline Lashbrook, the warden of Menard, in her official
capacity, for purposes of carrying out any injunctive relief that is ordered.
Identification of Unknown Defendants
Plaintiff will be allowed to proceed against the unknown defendants: John Doe # 1 (first
Menard correctional officer involved in the excessive force incident) and John Doe # 2 (second
Menard correctional officer involved in the excessive force incident). These individuals must be
identified with particularity before service of the Complaint can be made on them. Also, 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).
For that reason, Menard's current warden, Jacqueline Lashbrook, in her official capacity,
shall be responsible for responding to discovery (informal or formal) aimed at identifying these
unknown defendants. Guidelines for discovery will be set by the United States Magistrate Judge.
Once the names of the unknown defendants are discovered, Plaintiff must file a motion to
substitute each newly identified defendant in place of the generic designation in the case caption
and throughout the Complaint.

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Pending Motions
(1) Plaintiff’s Motion for Leave to Proceed in forma pauperis (Doc. 2) shall be addressed
in a separate order of the Court. However, as it appears Plaintiff is indigent, the Court
will order service as a matter of course upon all Defendants who remain in this action
pursuant to this screening order.
(2) Plaintiff’s Motion for Recruitment of Counsel (Doc. 4) shall be REFERRED to
United States Magistrate Judge Stephen C. Williams for disposition.
(3) As noted above, Plaintiff’s Motion for Leave to Amend/Supplement is DENIED.
Disposition
IT IS HEREBY ORDERED that BUTLER and BALDWIN are DISMISSED without
prejudice for failure to state a claim upon which relief can be granted. The Clerk of the Court is
DIRECTED to terminate these individuals as parties in CM/ECF.
The Clerk of the Court is DIRECTED to rename the JOHN DOE defendant as follows:
JOHN DOE # 1 (first Menard correctional officer involved in the excessive force incident) and
JOHN DOE # 2 (second Menard correctional officer involved in the excessive force incident)
The Clerk of the Court is DIRECTED to add JACQUELINE LASHBROOK, the
warden of Menard, in her official capacity, so that she may (1) participate in discovery aimed at
identifying the John Doe Defendants with particularity and (2) address any injunctive relief that
might be granted.
IT IS FURTHER ORDERED that COUNT 1 shall receive further review as to
EOVALDI, JOHN DOE # 1, and JOHN DOE # 2.
IT IS FURTHER ORDERED that COUNT 2 shall receive further review as to ELLIS.

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IT IS FURTHER ORDERED that COUNT 3 shall receive further review as to
EOVALDI, JOHN DOE # 1, and JOHN DOE # 2.
IT IS FURTHER ORDERED that all official capacity claims against EOVALDI,
ELLIS, JOHN DOE # 1, and JOHN DOE # 2 are DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for EOVALDI,
ELLIS, 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 any 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 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.
Other than notice to be sent to LASHBROOK, as ordered above, service shall not be
made on the Unknown Defendants (John Does 1 and 2) until such time as Plaintiff has identified
them by name in a properly filed motion for substitution of parties. Plaintiff is ADVISED that it

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is his responsibility to provide the Court with the names and service addresses for these
individuals.
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 Williams for further pre-trial proceedings, including for a decision on Plaintiff’s Motion
for Recruitment of Counsel (Doc. 5). Further, this entire matter shall be REFERRED to
United States Magistrate Judge Williams 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 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: October 31, 2017
s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

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