Conwell v. Marvin et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge David R. Herndon on 5/12/2018. (tjk)

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

LUKE D. CONWELL,
Plaintiff,
vs.
MARCUS MARVIN,
NURSE HOPE,
PICKFORD,
PEARL,
JEFFREY M. DENNISON,
HILLARD,
MICHAEL P. DUNNING,
ALFONSO DAVID, and
WEXFORD HEALTH SOURCES, INC.
Defendants.

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Case No. 18−cv–0131−DRH

MEMORANDUM AND ORDER

HERNDON, District Judge:
Plaintiff Luke Conwell, an inmate in Shawnee Correctional Center, brings
this action for deprivations of his constitutional rights pursuant to 42 U.S.C.
§ 1983. Plaintiff seeks compensatory relief, punitive relief, and declarative relief.
This case is now before the Court for a preliminary review of the Complaint
pursuant to 28 U.S.C. § 1915A, which provides:
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(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).

The Complaint
Plaintiff filed this action on January 24, 2018. (Doc. 1). On May 7, 2018,
the Court severed certain claims into a separate suit. (Doc. 7). Plaintiff makes
the following allegations as to the claims remaining in this action:
On March 20, 2017, Defendants Hope and Marvin were making rounds
passing out evening medication in the intake area, where Plaintiff was housed.
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(Doc. 1, pp. 1-2). Plaintiff asked Marvin for some toilet paper. (Doc. 1, p. 2).
Marvin refused. Id. Plaintiff stuck his hand out of the chuckhole clutching the
empty roll to show Marvin that he was truly out of toilet paper.

Id.

Marvin

refused. (Doc. 1, p. 3). Plaintiff asked Marvin for a grievance form. Id. Marvin
then began slamming the chuckhole cover on Plaintiff’s hand and stabbing him
with the large chuckhole key. (Doc. 1, pp. 3, 12). Plaintiff’s hand began bleeding
and swelling immediately. Id. Plaintiff alleges he had a large gash in the shape of
the chuckhole key on his hand. Id. Marvin said, “[n]ow write that up.” (Doc. 1,
p. 3).
Hope witnessed the entire incident and failed to intervene. Id. Hope also
turned a deaf ear to Plaintiff’s repeated requests for medical attention over the
next 3 days. (Doc. 1, p. 4). She told him to place a sick call slip, but Plaintiff
alleges that his sick call slips and grievances to Warden Dennison went
unanswered. Id. A day shift nurse finally noticed Plaintiff’s hand was infected on
March 27, 2017. (Doc. 1, p. 5). Plaintiff was diagnosed with a severe infection
and his injuries prompted an investigation against Marvin by internal affairs.
(Doc. 1, pp. 6-7).
Defendants Pickford and Pearl investigated the incident, but Plaintiff alleges
that they were biased against him from the start and tried to cover it up. (Doc. 1,
pp. 7-9).
Plaintiff alleges that Dennison retaliated against him for reporting the
incident by stamping Plaintiff’s grievance “received” on April 6, 2017, when

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Plaintiff submitted it on March 20, 2017. (Doc. 1, pp. 13-14). Plaintiff believes
that Dennison deliberately back-dated his grievance and contacted Marvin so that
Marvin could retaliate against Plaintiff. (Doc. 1, p. 14).
Plaintiff alleges that Marvin retaliated against him by moving him to a cell
without power, when he knew that Plaintiff had a TV.

(Doc. 1, pp. 14-15).

Plaintiff believes Marvin further retaliated against him by causing the B. of I.
officer to charge Plaintiff $500 for a new prison ID when the cost is $5.00. (Doc.
1, p. 15).

Plaintiff alleges that it took weeks to have his trust fund account

corrected. Id. Plaintiff also alleges that he was prevented from shopping at the
commissary on July 7, 2017 by non-defendant Ashmore, which he believes is a
further act of retaliation on Marvin’s behalf. (Doc. 1, pp. 15-16). Plaintiff wrote a
grievance about this issue, but Defendant Hillard refused to process it because
Plaintiff had requested demotions and transfers as his relief, which Plaintiff
believes was a further act of retaliation. (Doc. 1, p. 17). Hillard and Dennison
refused to respond to other grievances Plaintiff filed. (Doc. 1, p. 18).

Discussion
The severance order designated 6 claims for this action.

The following

claims survive threshold review:
Count 1 – Marvin used excessive force against Plaintiff on March 20,
2017 when he slammed his hand into the chuckhole and stabbed it
repeatedly with the chuckhole key, and Hope, Dennison, Pearl, and
Pickford either failed to intervene or approved, condoned, or turned
a blind eye to the conduct, in violation of the Eighth Amendment;

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Count 2 – Marvin committed an assault and/or battery against
Plaintiff in violation of Illinois state law when he slammed his hand in
the chuckhole and stabbed it repeatedly with the chuckhole key;
Count 3 – Hope was deliberately indifferent to Plaintiff’s injuries after
the March 20, 2017 incident when Hope refused to get him medical
attention for 3 days following the events at issue, in violation of the
Eighth Amendment;
Count 4 – Marvin retaliated against Plaintiff for writing a grievance
about the incident by moving him to a cell without power, convincing
an unnamed officer to overcharge Plaintiff’s trust fund account, and
arranging for Plaintiff to be denied his commissary shop in violation
of the First Amendment;
Count 5 – Dennison retaliated against Plaintiff for filing grievances
about this incident by refusing to respond to Plaintiff’s grievances in
violation of the First Amendment;
Count 6 – Hillard retaliated against Plaintiff for filing grievances
when she rejected his grievance regarding his ability to shop at
commissary in violation of the First Amendment.
In Count 1, Plaintiff has alleged that Marvin slammed his hand in the
chuckhole door and stabbed it with the chuckhole key. 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)). The factors relevant to this determination include: (1) the need for the
application of force; (2) the amount of force that was used; (3) the extent of injury
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inflicted; (4) the extent of the threat to the safety of staff and inmates, as
reasonably perceived by the responsible officials on the basis of the facts known
to them; and (5) any efforts made to temper the severity of a forceful response.
Lewis v. Downey, 581 F.3d 467, 477 (7th Cir. 2009); Outlaw v. Newkirk, 259
F.3d 833, 837 (7th Cir. 2001) (citation omitted).
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).
Here Plaintiff has alleged that he was merely asking for his weekly
allocation of toilet paper when Marvin responded with physical violence. Plaintiff
has alleged that he was locked in his cell at all times during the incident. On
these facts, it is a plausible inference from the Complaint that Marvin used more
force than reasonably necessary to respond to Plaintiff’s request. Plaintiff has
adequately stated an excessive force claim against Marvin.
Plaintiff has alleged that only Marvin actually applied force to him.
However, an individual does not actually have to lay hands on an inmate to be
personally involved in a constitutional violation.

It is sufficient if an official

“knows about the conduct and facilitates it, approves it, condones it, or turns a
blind eye.” Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Failure to

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properly respond to a grievance can show personal involvement.

Perez v.

Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015).
Plaintiff has alleged that Hope witnessed the excessive force, but failed to
intervene. This is the definition of “turning a blind eye” and so Plaintiff’s claims
against Hope will proceed. Moreover, Plaintiff has alleged that Dennison, Pearl,
and Pickford all responded improperly to his allegations of assault, and took
steps to cover it up.
involvement.

These allegations are also sufficient to allege personal

Count 1 will also proceed against Hope, Pickford, Pearl, and

Dennison.
In Count 2, Plaintiff alleges that Marvin violated Illinois state law when he
slammed his hand into the chuckhole and stabbed it with the chuckhole key.
Where a district court has original jurisdiction over a civil action such as a § 1983
claim, it also has supplemental jurisdiction over related state law claims pursuant
to 28 U.S.C. § 1367(a), so long as the state claims “derive from a common nucleus
of operative fact” with the original federal claims. Wisconsin v. Ho-Chunk Nation,
512 F.3d 921, 936 (7th Cir. 2008).

“A loose factual connection is generally

sufficient.” Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir. 2008) (citing Baer
v. First Options of Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995)).
Here, the facts are identical between Plaintiff’s § 1983 claim and his claim
arising under Illinois state law. Both require Plaintiff to prove that Marvin made
contact with his hand. This is sufficient to establish jurisdiction over the state
law claim, although Plaintiff is informed that he can have but one recovery.

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Indiana Harbor Belt R. Co. v. American Cyanamid Co., 860 F.2d 1441, 1445
(7th Cir. 1988). That means that Plaintiff will not be able to recover additional
damages (money) by mentioning Illinois state law in his Complaint. The amount
of money Plaintiff can recover remains the same whether he proceeds under §
1983 alone or § 1983 and Illinois state law together.
Pursuant to Illinois state law, battery is defined as the unauthorized
touching of another’s person. Welton v. Ambrose, 814 N.E. 970, 979 (Ill. App.
4th Dist. 2001). Here Plaintiff has alleged that Marvin slammed the chuckhole
door on his hand and stabbed him with the key. That is a sufficient allegation of
unauthorized touching, and Count 2 will be permitted to proceed.
In Count 3, Plaintiff has alleged that Hope was deliberately indifferent to
his injuries. 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).

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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)).
“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).
Plaintiff has alleged that he suffered injuries as a result of Marvin’s assault,
and that Hope observed the assault, making her aware of Plaintiff’s injuries.
Plaintiff has also alleged that he ultimately needed antibiotics to resolve the
infection arising out of his injuries, which is a plausible allegation that he suffered
from a serious medical need. Further, Plaintiff has alleged that he not only sought
medical treatment from Hope at the time of the incident, but for the following 3
days.

It is a reasonable inference from these facts that Hope was aware of

Plaintiff’s serious medical need, and that her actions caused a delay in treatment
for 3 days.

At the pleading stages, this is a sufficient allegation of deliberate

indifference and Count 3 will be permitted to proceed.
All of Plaintiff’s remaining claims arise under a theory of retaliation. To
succeed on a First Amendment Retaliation claim, a plaintiff must prove 1) that he
engaged in conduct protected by the First Amendment; 2) that he suffered a
deprivation that would likely deter First Amendment activity in the future; and 3)

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that the protected conduct was a “motivating factor” for taking the retaliatory
action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).
Plaintiff has alleged that he filed a grievance regarding the chuckhole
incident, and that was the protected conduct that caused the retaliation. Filing a
truthful grievance constitutes protected activity under the First Amendment.
Harris v. Walls, 604 F. App’x 518, 521 (7th Cir. 2015). Plaintiff has satisfied the
first element for a First Amendment claim.
Plaintiff’s allegations regarding the retaliatory conduct at issue in Counts 46 seem to rest on speculation; it is not clear, for example, how he would know
that Marvin spoke to non-defendants and convinced them to overcharge Plaintiff
or deprive him of commissary. But at the pleading stages, the Court must take
the allegations in the Complaint as true, and so Plaintiff’s claims that Marvin
retaliated against him by assigning him to a cell without power, and convinced
others to act against Plaintiff will proceed because it is plausible that such
conduct may deter future First Amendment activity. Likewise, it is plausible that
a failure to respond to grievances could keep an inmate from using the grievance
process, and so Plaintiff’s retaliation claims against Hillard and Dennison will also
proceed.
Pending Motions
Plaintiff’s Motion for Recruitment of Counsel will be referred to a United
States Magistrate Judge for disposition. (Doc. 3).

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Disposition
Counts 1-6 survive threshold review against Marvin, Hope, Pickford, Pearl,
Dennison, and Hillard.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants
Marvin, Hope, Pickford, Pearl, Dennison, and Hillard

(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.
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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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, 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

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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.

Judge Herndon
2018.05.12 09:50:58
-05'00'
__________________________________
U.S. District Judge

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