Rice v. Poe et al

Filing 12

MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Granting 4 MOTION for Service of Process at Government Expense filed by Jeremiah Rice. Signed by Judge David R. Herndon on 7/19/2018. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JEREMIAH RICE,
Plaintiff,
vs.

Case No. 18 cv–1019 DRH

POE,
OSBORNE,
WINANS,
STEPHANIE WAGGONER,
MICHAEL REDMAN, and
CHRISTOPHER WEABER
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Jeremiah Rice, an inmate in Danville Correctional Center, brings
this action for deprivations of his constitutional rights pursuant to 42 U.S.C.
§ 1983 for events that occurred at Vandalia Correctional Center. Plaintiff seeks
compensatory and punitive damages. 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–
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(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).
Upon careful review of the Complaint and any supporting exhibits, the
Court finds it appropriate to exercise its authority under § 1915A; portions of this
action are subject to summary dismissal.
The Complaint
On April 1, 2017, Plaintiff had low blood sugar, which made him
incoherent, lethargic, and unresponsive.

(Doc. 1, p. 7).

While transporting

Plaintiff to the Health Care Unit (“HCU”), defendant Poe pushed Plaintiff from
behind, and tightly handcuffed him, cutting off his circulation and causing
numbness and pain in his wrists. Id. Poe then took Plaintiff to the yard office,
where he threw him down, placed his knee on Plaintiff’s back, choked him, and
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yelled expletives. (Doc. 1, p. 8). Defendant Winans was present and failed to
intervene. Id. Winans threatened to “drug and bury Plaintiff in segregation” if he
reported the assault. Id. Winans ordered Poe to take Plaintiff to medical, and Poe
dragged Plaintiff back to the HCU. Id.
Plaintiff’s family called the Vandalia Police Department and reported the
April 1st assault. (Doc. 1, p. 12). The police department inquired at the prison,
and immediately after, Plaintiff was taken to segregation, where he stayed from
April 1, 2017 through June 28, 2017. Id. Defendant Osborne issued Plaintiff a
disciplinary report because of the report made to the police department. (Doc. 1,
pp. 12-13). This disciplinary report cited Plaintiff for interfering or impeding an
investigation and giving false information to an employee.

(Doc. 1, p. 13).

Plaintiff was denied the opportunity to be heard or present evidence at his May 5,
2017 adjustment committee hearing. Id. Defendant Redman found him guilty
without calling any of Plaintiff’s witnesses. Id. Plaintiff was sentenced to 90 days
in segregation, 90 days of C-grade, and the revocation of 90 days good time credit,
and a disciplinary transfer. Id. Plaintiff appealed, but the Warden denied his
appeal.

(Doc. 1, p. 14).

Plaintiff alleges that defendant Waggoner refused to

provide protection to Plaintiff after he filed a complaint against prison staff in
retaliation for his First Amendment conduct. (Doc. 1, p. 16). As a result, Plaintiff
was retaliated against. Id.
On May 10, 2017, Plaintiff was returning from the HCU, when he
encountered Lt. Osborne.

(Doc. 1, p. 14).

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Plaintiff stated “good job with the

investigation.”

Id. Osborne then wrote Plaintiff a false disciplinary report for

intimidation, threats, and disobeying a direct order. Id. Plaintiff was found guilty
by the adjustment committee on May 11, 2017. (Doc. 1, pp. 14-15). He was
sentenced to revocation of 30 days of good time credit. (Doc. 1, p. 15). Plaintiff
alleges that the guilty verdict was based on the officer’s report without any
testimonial evidence by any of the officers that allegedly witnessed the incident.

Id.
Discussion
The severance order designated 5 claims for this action:
Count 1 – Poe and Winans used excessive force and/or failed to
intervene in the use of excessive force on Plaintiff on April 1, 2017 in
violation of the Eighth Amendment;
Count 2 – Poe and Winans were deliberately indifferent to Plaintiff’s
injuries sustained during the excessive force incident when Poe
escorted Plaintiff to the HCU by dragging him 100 yards in violation
of the Eighth Amendment;
Count 3 – Osborne, Redman, and Waggoner retaliated against
Plaintiff for reporting the alleged April 1st assault by writing a false
disciplinary ticket and finding him guilty in violation of the First
Amendment;
Count 4 – Redman, Weaber, and Waggoner denied Plaintiff his due
process rights during the hearings on his disciplinary tickets in
violation of the Fourteenth Amendment;
Count 5 – Osborne further retaliated against Plaintiff for saying
“good job with the investigation” by writing Plaintiff another
disciplinary report in violation of the First Amendment.
As to Count 1, 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
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§ 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 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).
Plaintiff has alleged that defendant Poe over-tightened his handcuffs and
then attacked him while escorting Plaintiff to the HCU.

Excessively tight

handcuffs can be an example of excessive force. Payne v. Pauley, 337 F.3d 767,
779 (7th Cir. 2003); Herzog v. Village of Winnetka, 309 F.3d 1041 (7th Cir. 2002).
Moreover, slamming an inmate down and choking him, as Poe is alleged to have
done, also states a claim for excessive force in the absence of penological

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justification.

There is nothing in the Complaint to suggest Poe had any

justification for his conduct. On these facts, Plaintiff has adequately alleged an
excessive force claim against defendant Poe.
Additionally, as to defendant Winans, under the Eighth Amendment, a
correctional officer may be held liable for failing to intervene if he or she has a
realistic opportunity to step forward and protect a plaintiff from another officer's
excessive force, but fails to do so. Harper v. Albert, 400 F.3d 1052, 1064 (7th
Cir. 2005).

Plaintiff has alleged that Winans observed Poe commit the act of

excessive force and refused to intervene. That is sufficient to state a claim, and so
Count 1 will proceed against both Poe and Winans.
Plaintiff has additionally alleged that Poe and Winans were deliberately
indifferent to his serious medical needs.

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

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1364, 1373 (7th Cir. 1997).

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).
Although Plaintiff’s Complaint alleges that Winans ordered Poe to escort
Plaintiff back to the HCU, and that Poe did in fact take Plaintiff to the HCU,
Plaintiff alleges that Poe accomplished this by dragging him 100 yards by his
already overly-tight handcuffs. It is plausible from this allegation that Poe was
therefore deliberately indifferent to any injuries caused by the handcuffs since the
effect of escorting Plaintiff in this manner would likely be to worsen any injuries.
It is also plausible from Plaintiff’s Complaint that Winans likewise failed to
intervene in this incident. Accordingly, Count 2 will proceed against defendants
Winans and Poe.
Count 3 alleges that, after Plaintiff’s family filed a report with the local
police, defendants Osborne, Redman, and Waggoner retaliated against him by
disciplining him. 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

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the future; and 3) that the protected conduct was a “motivating factor” for taking
the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).
The Court will presume at the pleading stages, that Plaintiff’s report of the
assault to his family, which was in turn related to the police, constituted protected
conduct. Moreover, Plaintiff has alleged that he lost good time credit, 1 privileges,
and was sent to segregation as a result of the discipline. These actions clearly
constitute a detriment. Moreover, the alleged retaliation happened close on the
heels of the report, suggesting that the report could have been the motivating
factor for the discipline. Plaintiff has adequately stated a retaliation claim against
Osborne, Redman, and Waggoner.
Additionally in Count 4, Plaintiff has alleged that the May 5, 2017 hearing
deprived him of his due process rights because he was not allowed to call
witnesses or present evidence. Plaintiff additionally alleges that his rights were
violated during a May 11, 2017 hearing when the adjustment committee relied on
inadequate evidence.

When a plaintiff brings an action under § 1983 for

procedural due process violations, he must show that the state deprived him of a
constitutionally protected interest in “life, liberty, or property” without due
process of law. Zinermon v. Burch, 494 U.S. 113, 125 (1990). Here, Plaintiff has
alleged that he lost good time credit. Good time credit is a recognized liberty
interest.

Wolff v. McDonnell, 418 U.S. 539, 556-57 (1974); Montgomery v.

Anderson, 262 F.3d 641, 644-45 (7th Cir. 2001).

This case raises some issues pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), but
resolutions of those issues is best left to a more developed record.
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Prison disciplinary hearings satisfy procedural due process requirements
where an inmate is provided: (1) written notice of the charge against the prisoner
twenty four (24) hours prior to the hearing; (2) the right to appear in person
before an impartial body; (3) the right to call witnesses and to present
physical/documentary evidence, but only when doing so will not unduly jeopardize
the safety of the institution or correctional goals; and (4) a written statement of
the reasons for the action taken against the prisoner. See Wolff, 418 U.S. at 56369; Cain v. Lane, 857 F.2d 1139, 1145 (7th Cir. 1988).
First, Plaintiff has alleged that he was deprived of the third element; he was
not permitted to present evidence or call witnesses on his own behalf. As Plaintiff
has alleged that he was deprived of a recognized liberty interest and of one of the
listed Wolff protections, he has adequately stated a claim for violation of his due
process rights regarding the May 5, 2017 hearing.
Additionally, as to the May 11, 2017 hearing, Plaintiff has alleged that the
decision was not supported by adequate evidence. In a due process claim, not
only must the requirements of Wolff be satisfied, but the decision of the
disciplinary hearing board must be supported by “some evidence.” Black v. Lane,
22 F.3d 1395, 1402 (7th Cir. 1994). Courts must determine whether the decision
of the hearing board has some factual basis. Webb v. Anderson, 224 F.3d 649
(7th Cir. 2000). Even a meager amount of supporting evidence is sufficient to
satisfy this inquiry.

Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007).

Plaintiff has alleged that the adjustment committee relied on the officer’s report

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without investigating the veracity of the report by interviewing other witnesses. At
this stage, the Court will also allow Plaintiff’s due process claim regarding the May
11, 2017 hearing to proceed.
But Count 5 must be dismissed. As discussed more fully above, in order
to state a retaliation claim, Plaintiff must allege that he engaged in protected
conduct. Plaintiff’s statement to Osborne, “good job with the investigation,” is not
protected conduct. In order to determine whether speech constitutes protected
First Amendment activity, the Court employs the Turner test. In Turner v. Safley,
the Supreme Court articulated the penological interest test: “when a prison
regulation impinges on inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.” 482 U.S. 78, 89 (1987).
The question is whether the speech at issue is consistent with legitimate
penological objectives. Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009).
Inmates retain a First Amendment right to complain about prison staff,
whether orally or in writing, but only in ways consistent with their status as
prisoners. See Turner, 482 U.S. at 89–90; Watkins v. Kasper, 599 F.3d 791, 79697 (7th Cir. 2010); Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir. 2006);

Simpson v. Nickel, 450 F.3d 303, 307 (7th Cir. 2006). Insubordinate, verbal
remarks to prison staff are inconsistent with the status of a prisoner. See Kervin

v. Barnes, 787 F.3d 833, 834 (7th Cir. 2015) (concluding that a prisoner engaged
in unprotected backtalk by insisting on speaking with a lawyer after the guard had
said “no”); Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008) (calling a

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hearing officer “foul and corrupted bitch” was not protected speech because the
remark was “insulting, derogatory, and questioned her authority”); Freeman v.

Tex. Dep't of Criminal Justice, 369 F.3d 854, 858, 864 (5th Cir. 2004)
(concluding that an inmate who during a religious service accused a chaplain of
theological errors had engaged in an unprotected challenge to institutional
authority).
Plaintiff has alleged in this lawsuit that he does not believe the investigation
was a “good job.”

Rather, he has characterized it as biased and retaliatory.

Presumably, that is the sense he was attempting to convey in his speech to
defendant Osborne. Plaintiff has also alleged that the incident occurred while he
was being transported back to his cell from the HCU. Plaintiff has failed to allege
facts making it plausible that his complaint was consistent with legitimate
penological objectives. It did not occur at a recognized time or place for making
complaints. It was not constructive. And to the extent that it was attempting to
convey Plaintiff’s true feelings about the investigation, it was likely sarcastic and
inappropriate. Therefore, as Plaintiff has not plausibly alleged that he engaged in
protected conduct, Count 5 will be dismissed without prejudice for failure to state
a claim.
Pending Motions
Plaintiff has filed a Motion for Service of Process at Government Expense.
(Doc. 4). Although Plaintiff is not proceeding in forma pauperis in this action, the
Court recognizes that because Plaintiff is incarcerated, he may have difficulty

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effectuating service within the 90 day time limit imposed by Federal Rule of Civil
Procedure 4(m).

Therefore, Plaintiff’s Motion for Service of Process at

Government Expense (Doc. 4) is GRANTED.
Plaintiff’s Motion for Recruitment of Counsel is referred to a United States
Magistrate Judge for disposition. (Doc. 3).
Disposition
IT IS ORDERED that Counts 1-4 survive threshold review against
defendants Poe, Osborne, Winans, Waggoner, Redman, and Weaber. Count 5 is
DISMISSED without prejudice for failure to state a claim. Plaintiff’s Motion for
Service of Process at Government Expense is GRANTED. (Doc. 4).
IT IS ORDERED that the Clerk of Court shall prepare for Defendants Poe,
Osborne, Winans, Waggoner, Redman, and Weaber:

(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

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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.
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)(3) 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

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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
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
2018.07.19
13:19:02 -05'00'
United States District Judge

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