Thompson v. Myers

Filing 7

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge David R. Herndon on 4/18/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RICHARD THOMPSON, #Y15704,
Plaintiff,
vs.

Case No. 18 cv–799 DRH

MAJOR MYERS,
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Richard Thompson, an inmate in Lawrence Correctional Center,
brings this action pursuant to 42 U.S.C. § 1983 for deprivations of his
constitutional rights that allegedly occurred at Big Muddy River Correctional
Center (“Big Muddy”). In his Complaint, plaintiff claims the defendant subjected
him to excessive force in violation of the Eighth Amendment (doc. 1). 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
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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).
Upon careful review of the Complaint and any supporting exhibits, the
Court finds it appropriate to allow this case to proceed past the threshold stage.
The Complaint
In his Complaint (doc. 1), plaintiff makes the following allegations: on
January 17, 2018, plaintiff was in bed in his cell when Myers forced him out of
bed and slammed him repeatedly against it (doc. 1, pp. 5, 7).

His back was

injured by this, and he presently cannot bend or twist it (doc. 1, p. 5). Plaintiff is
in a lot of pain and is certain he will need back surgery. Id. “All this could have
[been] avoided if Major Myers hadn’t [slammed his] back repeatedly against the
bed” even after plaintiff told him that he had back problems (doc. 1, pp. 5, 7).
Myers cuffed plaintiff so that his arms were “bent over forcefully all the way over
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the Plaintiff’s head.” [Doc. 1, pp. 7-8]. This reinjured plaintiff’s right shoulder
that he had surgery on in January 2015. Id.
It took the nurse a week to give plaintiff pain medication, and when he
received X-rays after the attack, they showed that plaintiff’s back was fractured
from his being slammed against an object (doc. 1, p. 8). When plaintiff told the
doctor about the incident with Myers, the doctor agreed with plaintiff that Myers
slamming him against the bed caused the fractures (doc. 1, pp. 8-9). Plaintiff
seeks monetary damages from Myers (doc. 1, p. 6).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to
designate a single count in this pro se action. 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 regarding its merit.
Count 1 –

Myers subjected Plaintiff to excessive force on January 17,
2018 in violation of the Eighth Amendment.

As discussed in more detail below, Count 1 will be allowed to proceed past
threshold. Any other intended claim that has not been recognized by the Court is
considered dismissed without prejudice as inadequately pleaded under the

Twombly pleading standard.
Count 1

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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). Plaintiff has stated an excessive force claim
against Myers under this standard. Count 1 will therefore proceed against him.
Pending Motions
Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (doc. 2) will be
addressed in a separate order of this Court.
Plaintiff’s Motion for Recruitment of Counsel (doc. 3) is REFERRED to a
United States Magistrate Judge for a decision.
Disposition
IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against
MYERS.
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IT IS FURTHER ORDERED that as to COUNT 1, the Clerk of Court shall
prepare for MYERS: (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 the defendant’s place of employment as identified by plaintiff. If the
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 the defendant, and the Court will
require that the 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.
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 a United
States Magistrate Judge for further pre-trial proceedings.

Further, this entire

matter shall be REFERRED to a United States Magistrate Judge for disposition,
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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, whether or not his application to proceed in forma pauperis
is 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.

Judge Herndon
2018.04.18
15:51:53 -05'00'
United States District Judge

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