Mitchell v. Heberer et al
ENTRY STRICKEN: ORDER denying 2 MOTION for Leave to Proceed in forma pauperis filed by Dannel Maurice Mitchell. IT IS FURTHER ORDERED that Plaintiff shall pay the full filing fee of $400.00 for this action within twenty-eight (28) days of the date of entry of this Order (on or before April 5, 2018). If Plaintiff fails to comply with this Order in the time allotted by the Court, this case will be dismissed for failure to comply with a court order and/or for failure to prosecute this action. In addition, Plaintiff is hereby ORDERED TO SHOW CAUSE by the same deadline (on or before April 5, 2018) why this Court should not restrict him from filing any further actions in this Court until such time as Plaintiff pays the $400.0 0 filing fee for this action, the outstanding $3,188.92 owed for the lawsuits he filed in this District in 2016-17, plus any additional fees owed in connection with the cases he has filed in this District in 2018 (an additional $1,200.00 to date). (Action due by 4/5/2018). Signed by Judge David R. Herndon on 3/8/2018. (tjk) Modified on 3/9/2018 (tjk).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GUY ODOM, # M-27219,
JEFFREY B. JULIUS,
Case No. 18-cv-116-SMY
MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Guy Odom, currently incarcerated at Dixon Correctional Center (“Dixon”),
brings this pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging Defendant Jeffrey
Julius subjected him to excessive force in violation of the Eighth Amendment while he was
confined at Big Muddy River Correctional Center (“BMRCC”). The Complaint is now before
the Court for a preliminary review pursuant to 28 U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner Complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the
Complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law is immune from such relief.
28 U.S.C. § 1915A(b).
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 “no reasonable person could suppose to have any merit.” 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. Conversely, a Complaint is plausible on its
face “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
Although the Court is obligated to accept factual allegations as true, see Smith v. Peters,
631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible
that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v. Ross, 578 F.3d 574,
581 (7th Cir. 2009). Courts “should not accept as adequate abstract recitations of the elements of
a cause of action or conclusory legal statements.” Id. At the same time, however, the factual
allegations of a pro se complaint are to be liberally construed. See Arnett v. Webster, 658 F.3d
742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.
Applying these standards, the Court finds that Plaintiff’s claim survives threshold review
under § 1915A.
On September 10, 2017, Plaintiff was in the dietary area at BMRCC and got into a
disagreement with the Food Supervisor. (Doc. 1, p. 11). Lt. Julius walked over and told Plaintiff
to leave the area, without knowing anything about the circumstances or asking for an
explanation. Plaintiff attempted to explain the situation, but Julius put his left hand on Plaintiff’s
right shoulder and shoved him, in an attempt to make Plaintiff leave. Id. Plaintiff told Julius not
to push him and shrugged his shoulder to disengage Julius’s hand. Julius responded by striking
Plaintiff on the left side of the face with his fist. (Doc. 1, p. 11). The blow cut Plaintiff’s lower
lip and caused him to fall to the floor. Several officers restrained Plaintiff, and he was taken to
segregation. (Doc. 1, pp. 10-11).
Plaintiff “became mentally unstable” and was seen by mental health personnel and placed
on crisis watch. (Doc. 1, p. 10). He also received medical attention. The following day, he was
“extracted” from the crisis cell and was forcibly medicated. On September 12, 2017, Plaintiff
was transferred to the Special Treatment Center at Dixon and kept under crisis watch. (Doc. 1,
Plaintiff seeks compensatory and punitive damages. (Doc. 1, p. 12).
Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court finds it convenient to characterize
the pro se action as a single count. The parties and the Court will use this designation in all
future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of this count does not constitute an opinion as to its merit. Any other claim that is
mentioned in the Complaint but not addressed in this Order should be considered dismissed
Count 1: Eighth Amendment claim against Julius for using excessive force
against Plaintiff on September 10, 2017.
This claim shall proceed for further review.
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).
Based on Plaintiff’s description of his encounter with Julius, it does not appear that a
punch to Plaintiff’s face was necessary in order to maintain or restore discipline. At this stage,
Plaintiff’s factual allegations are sufficient to state a colorable Eighth Amendment excessive
force claim against Julius. Count 1 will therefore proceed for further consideration.
Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2) shall be granted in a
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to the United
States Magistrate Judge for further consideration.
The motion for service of process at government expense (Doc. 4) is GRANTED.
The Clerk of Court shall prepare for Defendant JULIUS: (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 Defendant’s place of employment as identified by Plaintiff. If
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 Defendant, and the Court will require Defendant to pay the full costs of formal
service, to the extent authorized by the Federal Rules of Civil Procedure.
If the Defendant cannot be found at the 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, nor disclosed by the Clerk.
Defendant is 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 Reona J. Daly for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge Daly
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, notwithstanding that
his application to proceed in forma pauperis will be 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 8, 2018
s/ STACI M. YANDLE
United States District Judge
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