Driver v. Illinois Department of Corrections et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 4/3/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
VICTOR DRIVER,
#B-14516,

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Plaintiff,
vs.
IDOC,
PINCKNEYVILLE C.C.,
WARDEN LOVE,
K. JAIMET,
WARDEN OF PINCKNEYVILLE C.C.,
C/O ESTES,
UNKNOWN SPECIALIST,
SARA FARRIS,
UNKNOWN DOCTOR, and
UNKNOWN NURSE,
Defendants.

Case No. 18-CV-561-MJR

MEMORANDUM AND ORDER

REAGAN, Chief Judge:
Plaintiff Victor Driver, an inmate currently housed at Pinckneyville Correctional Center,
filed this pro se action pursuant to 42 U.S.C. § 1983. Plaintiff brings allegations pertaining to an
alleged excessive force incident and deliberate indifference to his resultant injuries. Plaintiff
seeks compensatory and punitive damages.
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
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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).
The Complaint
On January 8, 2018, Plaintiff was struck in his right eye with the top from a water bottle.
(Doc. 1, p. 4). Shortly after contact, Defendant Estes, a correctional officer approached Plaintiff
and asked if “he really hit” Plaintiff in the eye. Id. Plaintiff indicated that he had been hit in the
eye. Id. Plaintiff’s eye was swollen and very painful. Id. Additionally, when Plaintiff wiped
his eye with his shirt, he saw blood on his shirt. Id. According to the Complaint, there have
been three other incidents of officers “popping” inmates in the eyes with the tops of their water
bottles. (Doc. 1, p. 6). Additionally, Plaintiff claims that, on “different days of the week,” other
inmates have observed Plaintiff being hit in his eyes by Officer Estes and other correctional
officers. (Doc. 1, p. 7).
Officer Estes sent Plaintiff to the Healthcare Unit for treatment because (1) Plaintiff

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asked for medical treatment and (2) Officer Estes saw that “what he had done to his eye was very
bad.” (Doc. 1, pp. 4-5). After arriving at the Healthcare Unit, Plaintiff waited 15 minutes for
treatment. (Doc. 1, p. 5). Plaintiff was treated by Farris, a nurse. Id. Nurse Farris gave Plaintiff
eye drops, pain medication, and an ice pack. Id. Then Plaintiff was returned to his housing unit,
still in pain. Id. Plaintiff saw Nurse Farris again on February 2, 2018. (Doc. 1, p. 6). She gave
Plaintiff more pain medication and eye drops. Id. Plaintiff alleges that this treatment was not
helpful, but he does not indicate that he told Farris that the treatment was not helpful.
Plaintiff was also told (by someone) that he would see a specialist on February 7, 2018.
(Doc. 1, p. 6). However, to date, Plaintiff has not seen a specialist. Id. Plaintiff also claims that,
to date, he has not been seen by a physician. (Doc. 1, p. 8).
Plaintiff generally alleges that on a sick call request he described pain in his eye and
associated headache, but nothing was done to help the pain issues. (Doc. 1, p. 6). This claim,
however, is not associated with any specific medical visit or provider.
Plaintiff also references a follow-up medical examination that occurred on January 10,
2018. (Doc. 1, p. 5). But, Plaintiff does not describe who treated him on this day or what type of
treatment he received. On January 12, 2018, although Plaintiff’s eye was still painful, Plaintiff
returned to work. Id.
Plaintiff contends that his eye is still painful and causes headaches. (Doc. 1, pp. 5-6).
Plaintiff claims that when the bottle cap hit him it lacerated his eye and almost “put his eye out.”
(Doc. 1, p. 7). He also claims that he suffered broken blood vessels behind his right eye and that
he has lost eyesight in his right eye. Id.

Additionally, Plaintiff’s eye is discolored and very

sensitive to outside air. (Doc. 1, p. 8).

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Dismissal of Certain Defendants
Defendants not Associated with Specific Allegations
Before outlining Plaintiff’s claims, the Court finds it appropriate to address Plaintiff’s
failure to include specific allegations against Warden Love, K. Jaimet, Warden of Pinckneyville
Correctional Center, Unknown Specialist, Unknown Doctor, and Unknown Nurse in the body of
his Complaint,1 despite his having listed them among the defendants. Plaintiffs are required to
associate specific defendants with specific claims, so that defendants are put on notice of the
claims brought against them and so they can properly answer the complaint. See Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007); FED. R. CIV. P. 8(a)(2).
Where a plaintiff has not included a defendant in his statement of claim, the defendant
cannot be said to be adequately put on notice of which claims in the complaint, if any, are
directed against him. Furthermore, merely invoking the name of a potential defendant is not
sufficient to state a claim against that individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th
Cir. 1998).

And in the case of those defendants in supervisory positions, the doctrine of

respondeat superior is not applicable to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724,
740 (7th Cir. 2001) (citations omitted). Because Plaintiff has failed to include any specific
allegations in the statement of claim pertaining to Warden Love, K. Jaimet, Warden of
Pinckneyville Correctional Center, Unknown Specialist, Unknown Doctor, and Unknown Nurse,
these individuals will be dismissed from this action without prejudice.

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The only reference to the warden defendants (Warden Love, K. Jaimet, Warden of Pinckneyville Correctional
Center) is in Plaintiff’s list of defendants, wherein Plaintiff states that “The Warden(s)” are “responsible for
supervising the various department heads for programs [including healthcare].” (Doc. 1, p. 3). The only allegation
pertaining to the unknown medical defendants (Unknown Specialist, Unknown Doctor, and Unknown Nurse) states
as follows: “As a result of the defendant doctor, nurse Sara Farris, unknown nurse and other defendants’ actions
plaintiff has lost site in his right eye from dryness, irritation, burning, and swelling.” (Doc. 1, p. 8).

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IDOC and Pinckneyville Correctional Center
To the extent that Plaintiff is attempting to bring a § 1983 claim against IDOC or
Pinckneyville Correctional Center (a division of IDOC), the claim is not viable. This is because
IDOC, as a state agency, is not a “person” that may be sued under § 1983, and neither are its
divisions. Thomas v. Illinois, 697 F.3d 612, 613 (7th Cir. 2012) (citing Will v. Mich. Dep't of
State Police, 491 U.S. 58, 70–71 (1989)); see also 42 U.S.C. § 1983 (“Every person who, under
color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress....”).
Plaintiff also seeks to impose respondeat superior liability on these defendants in
connection with his state law battery claim.

Illinois, as a general matter, recognizes the

respondeat superior doctrine. See Adames v. Sheahan, 909 N.E.2d 742, 755 (Ill. 2009); see also
Doe v. City of Chicago, 360 F.3d 667, 670 (7th Cir. 2004). However, “the Eleventh Amendment
prohibits a suit in federal court ‘in which the State or one of its agencies or departments is named
as the defendant.’ ” Moore v. Indiana, 999 F.2d 1125, 1128 (7th Cir. 1993) (quoting Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). This includes “state-law claims
brought into federal court under pendent jurisdiction.” Pennhurst State Sch., 465 U.S. at 121.
IDOC, as an Illinois state agency (and Pinckneyville Correctional Center, as a division of
IDOC), enjoys immunity from suit in federal court. See Ford v. Lane, 714 F.Supp. 310, 313
(N.D. Ill. 1989). A state may waive Eleventh Amendment immunity. See MCI Telecomms.
Corp. v. Illinois Bell Tel. Co., 222 F.3d 323, 337 (7th Cir.2000). But, Illinois has waived its

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sovereign immunity only to the extent of authorizing itself to be sued in the Illinois Court of
Claims. See Brooks v. Ross, 578 F.3d 574, 579 (7th Cir.2 009) (citing 705 ILCS 505/8(d));
Williamson Towing Co. v. Illinois, 534 F.2d 758, 759–60 (7th Cir. 1976).
Accordingly, IDOC and Pinckneyville Correctional Center shall be dismissed because
neither entity may be sued under § 1983 and by reason of Eleventh Amendment immunity. With
respect to any intended § 1983 claim, IDOC and Pinckneyville Correctional Center will be
dismissed with prejudice. With respect to pendent state law claims, IDOC and Pinckneyville
Correctional Center will be dismissed without prejudice to refiling in the Illinois Court of
Claims.
Division of Counts
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 claim against Officer Estes for using excessive force
against Plaintiff on January 8, 2018.

Count 2 –

Illinois assault and/or battery claim against Officer Estes for using
excessive force against Plaintiff on January 8, 2018.

Count 3 –

Eighth Amendment claim against Nurse Farris for exhibiting deliberate
indifference to Plaintiff’s serious medical need (eye injury and associated
pain).
Count 1

The Eighth Amendment prohibits the cruel and unusual punishment of prisoners. U.S.
CONST., amend. VIII. A prison guard’s intentional use of excessive force against an inmate
without penological justification constitutes cruel and unusual punishment.

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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.”
Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir. 2009) (quoting Whitley v. Albers, 475 U.S.
312, 319 (1986)). The relevant inquiry focuses on the amount of force used and not on the injury
that resulted. Reid v. Melvin, 695 F.App’x. 982 (7th Cir. 2017) (citation omitted).
The allegations in Plaintiff’s Complaint support a claim of excessive force against Estes.
The Complaint suggests that Estes intentionally flicked a bottle cap at Plaintiff’s eye. The
Complaint also suggests that Estes and other officers may be engaging in this activity for their
own amusement. (Doc. 1, pp. 7-8). The bottle cap allegedly hit Plaintiff in the eye, causing a
serious injury. Plaintiff describes no conduct on his part that would have provoked Estes or
necessitated the use of force. Id. Given these allegations, Count 1 will receive further review
against Estes.
Count 2
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)).
The Court has original jurisdiction over Count 1, and supplemental jurisdiction over Plaintiff’s
related state law claim for assault and/or battery.
Under Illinois state law, “[a] battery occurs when one ‘intentionally or knowingly without

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legal justification and by any means, (1) causes bodily harm to an individual or (2) makes
physical contact of an insulting or provoking nature with an individual.’ ” Smith v. City of
Chicago, 242 F.3d 737, 744 (7th Cir. 2001) (quoting 720 ILL. COMP. STAT. 5/12–3(a)). The
Complaint addresses each element of this claim and suggests that Estes may have assaulted
and/or battered Plaintiff. Accordingly, Count 2 shall receive further review against Estes.
Count 3
In order to state a claim for deliberate indifference to a serious medical need, an inmate
must show that (1) he suffered from an objectively serious medical condition and (2) the
defendant was deliberately indifferent to a risk of serious harm from that condition.

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).
“Deliberate indifference is proven by demonstrating that a prison official knows of a substantial
risk of harm to an inmate and either acts or fails to act in disregard of that risk. 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). In addition, the “deliberate refusal to treat treatable pain can rise to the level of an
Eighth Amendment violation.” Brown v. Darnold, 505 F. App’x. 584 (7th Cir. 2013) (citing Gil
v. Reed, 381 F.3d 649, 661-62 (7th Cir. 2004)). Finally, prison doctors demonstrate deliberate
indifference when they respond to “a known condition through inaction” or “by persisting with
inappropriate treatment.” Gaston, 498 F.App’x. at 631-32; Gayton v. McCoy, 593 F.3d 610,

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623-24 (7th Cir. 2010); Gonzalez v. Feinerman, 663 F.3d 311, 314 (7th Cir. 2011); Greeno v.
Daley, 414 F.3d 645, 653-54 (7th Cir. 2005).
Here, Plaintiff’s eye injury and associated pain, suggest an objectively seriously
condition. Plaintiff, however, has failed to allege that Nurse Farris responded with deliberate
indifference to that serious condition. The only allegations as to Nurse Farris suggest that she
treated Plaintiff’s condition with eye drops, pain medication, and an ice pack. Plaintiff alleges
that his symptoms, including pain, continued. This, however, falls short of suggesting deliberate
indifference as to Nurse Farris. It is possible that Nurse Farris or other medical personnel
exhibited deliberate indifference to Plaintiff’s injury. But the Complaint does not include any
allegations associated with a specific defendant that are sufficient to survive preliminary review.
Accordingly, Count 3 (and Nurse Farris) shall be dismissed without prejudice for failure to state
a claim upon which relief may be granted.
Pending Motions
Plaintiff’s Motion for Service of Process at Government Expense (Doc. 4) is DENIED as
unnecessary. The Court will order service as a matter of course upon all defendants who

remain in this action pursuant to this screening order because Plaintiff is a prisoner who has
also requested permission to proceed in this action as a poor person.
Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) shall be referred to United
States Magistrate Judge Stephen C. Williams.
Disposition
IT IS ORDERED that LOVE, JAIMET, WARDEN OF PINCKNEYVILLE
CORRECTIONAL CENTER, UNKNOWN SPECIALIST, UNKNOWN DOCTOR, AND
UNKNOWN NURSE are DISMISSED without prejudice for failure to state a claim upon

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which relief may be granted.

The Clerk of the Court is DIRECTED to terminate these

individuals as parties in CM/ECF.
IT IS ORDERED that IDOC and PINCKNEYVILLE CORRECTIONAL CENTER
are DISMISSED because neither entity may be sued under § 1983 and by reason of Eleventh
Amendment immunity.

With respect to any intended § 1983 claim, IDOC and

PINCKNEYVILLE CORRECTIONAL CENTER are dismissed with prejudice. With respect
to any pendent state law claims, IDOC and PINCKNEYVILLE CORRECTIONAL CENTER
are dismissed without prejudice to refiling in the Illinois Court of Claims. The Clerk of the
Court is DIRECTED to terminate these entities as parties in CM/ECF.
IT IS ORDERED that COUNTS 1 and 2 shall receive further review as to ESTES.
IT IS ORDERED that COUNT 3 is DISMISSED without prejudice for failure to state a
claim upon which relief may be granted.

In connection with this dismissal, FARRIS is

dismissed for failure to state a claim upon which relief may be granted. The Clerk of the Court is
DIRECTED to terminate this individual as a party in CM/ECF.
IT IS ORDERED that, as to COUNTS 1 and 2, the Clerk of the Court shall prepare for
ESTES: (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.

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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.
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 Stephen C. Williams for further pre-trial proceedings, including Plaintiff’s Motion for
Recruitment of Counsel. Further, this entire matter shall be REFERRED to United States
Magistrate Judge Williams, 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).

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IT IS SO ORDERED.
DATED: April 3, 2018
s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

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