Falkenburry v. Burns et al

Filing 12

ORDER FOR SERVICE OF PROCESS on Defendants ROBERT BURNS (official capacity), GARRETT ETHERTON, NICHOLAS FREEMAN, and JOHN DOE 1-4 (once identified). The 1 Complaint survives screening pursuant to 28 U.S.C. § 1915A, as follows: COUNT 1 against BURNS, in his official capacity; COUNTS 3 and 4 against ETHERTON and FREEMAN, in their individual capacities; and COUNT 6 and 7 against JOHN DOE 1-4 (once identified), in their individual capacities. All other claims are dismissed without prejudice, including COUNTS 2 and 5 against ALL DEFENDANTS. The Clerk is DIRECTED to ENTER the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. Signed by Judge J. Phil Gilbert on 5/13/2024. (jsy)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FRANK S. FALKENBURRY, B83273,
Plaintiff,
vs.
ROBERT D. BURNS,
GARRETT ETHERTON,
NICHOLAS FREEMAN,
JOHN DOE 1,
JOHN DOE 2,
JOHN DOE 3,
and JOHN DOE 4,
Defendants.

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Case No. 24-cv-00115-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Frank Falkenburry, an inmate in the custody of the Illinois Department of
Corrections (IDOC) and currently incarcerated at Big Muddy River Correctional Center, filed this
pro se action under 42 U.S.C. § 1983, the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12101 et seq., and the Rehabilitation Act (Rehab Act), 29 U.S.C. §§ 794–94e. He claims that
the defendants violated his rights during two separate periods of confinement at Jackson County
Jail from September 7, 2022 – October 7, 2022 (first detention) and from January 27, 2023 –
February 23, 2023 (second detention). (Doc. 1, pp. 1-36). He seeks monetary relief. Id. at 11.
The Complaint is subject to preliminary review under 28 U.S.C. § 1915A, which requires
screening and dismissal of any portion that is frivolous or malicious, fails to state a claim for relief,
or seeks money damages from an immune defendant. The factual allegations of the pro se
complaint are liberally construed at this stage. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 821 (7th Cir. 2009).
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The Complaint
According to the Complaint, Plaintiff was arrested and detained at Jackson County Jail on
two separate occasions. (Doc. 1, pp. 3-11). He was housed there during his pretrial detention from
September 7, 2022 – October 7, 2022 (first detention). He returned to await sentencing and
transfer into IDOC custody from January 27, 2023 – February 23, 2023 (second detention).
During both periods of confinement at the Jail, Plaintiff was denied access to his right prosthetic
leg, subjected to excessive force by officers, and denied medical care for his injuries. Id.
First Detention
Plaintiff describes himself as a physically disabled inmate who requires the use of a right
leg prosthetic. Id. at 3-4. Soon after he arrived at the Jail on September 7, 2022, his prosthetic
was taken, and he had no access to it for the majority of his detention there. Without it, Plaintiff
was confined to a bed 24 hours per day. He was also denied access to recreation and commissary,
while other detainees could access both. Plaintiff was initially placed in a holding cell that lacked
a shower, telephone, television, or recreation area. Id. at 3. At times, he had to knock on his cell
door simply to alert the Jail’s staff to his basic needs. Able-bodied detainees were not required to
do so. Plaintiff was then moved to a cell on the Jail’s second floor and forced to walk up and down
20 stairs simply to access housing. Id. at 4.
On October 2, 2022, Plaintiff alerted staff in the booking area that he was vomiting blood
and needed toilet paper around 6:15 a.m. At the time, he had no access to his prosthetic leg.
Garrett Etherton and Nicholas Freeman responded.

Without provocation or penological

justification, Etherton struck Plaintiff in the nose so hard that Plaintiff suffered a nasal bone and
maxilla fracture. Freeman either assisted Etherton in this use of force or failed to intervene and
protect Plaintiff. Id.

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After inflicting these injuries, both officers left the cell without offering Plaintiff any
medical attention. They returned only once before leaving work for the day. Id.
Following the shift change at 7:00 a.m., Corporal Rushing examined Plaintiff’s injuries
and immediately sent him to St. Joseph’s Hospital in Murphysboro for examination and treatment.
There, he was diagnosed with a fracture to the nasal bone and maxilla. The injuries were so severe
that he was referred to a plastic surgeon for treatment of disfigurement, inhibited breathing, and
pain. He still suffers from breathing difficulties due to these injuries. Id. at 5.
Lieutenant Jon Kilquist contacted the Illinois State Police to investigate the incident on
October 5, 2022. Following the investigation, Etherton’s employment was terminated. The
investigation yielded no findings that Plaintiff provoked the attack. Plaintiff was issued a
recognizance bond and released from custody on October 7, 2022. Id.
Second Detention
Plaintiff returned to Jackson County Jail to await sentencing on January 27, 2023. He was
sentenced to three years in the IDOC on February 9, 2023. Id. at 5. Plaintiff did not actually
transfer into IDOC custody until February 23, 2023. Id.
On February 20, 2023, Plaintiff knocked on his holding cell door to request use of a
telephone. Id. at 6. At the time, he had no access to his right leg prosthetic. Deputies John Doe
1-4 entered his cell, shot him with a taser gun, and fractured his left leg. The deputies then placed
him in cuffs and held him in a 4-point restraint chair for more than 6 hours without treating his
fractured leg bone. Two days later, he was medically cleared for transfer into IDOC custody with
an untreated left leg fracture. Id.
Plaintiff transferred to Menard Correctional Center to begin serving his sentence on
February 23, 2023. When he arrived, he was transported to Carbondale Memorial Hospital for x-

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rays of his left leg. X-rays showed a closed, non-displaced fracture of the left fibula. Plaintiff was
issued a wheelchair and ordered to refrain from all weight-bearing activity while his leg healed.
He requested and received copies of all incident reports and medical records from Jackson County
Jail. Lieutenant Kilquist produced these records to Plaintiff. However, there are no records of the
incident that occurred on February 20, 2023. Id.
Preliminary Dismissals
Plaintiff mentions the following individuals in the statement of his claim: Corporal Rushing
and Lieutenant Kilquist. He does not bring claims against either one or identify them as defendants
in the Complaint. The Court will not treat these individuals as defendants, and all claims against
them are considered dismissed without prejudice. See FED. R. CIV. P. 10(a) (noting that the title
of the complaint “must name all the parties”).
Discussion
Based upon the allegations, the Court designates the following claims in the pro se
Complaint:
Count 1:

Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and/or
Rehabilitation Act (Rehab Act), 29 U.S.C. §§ 794–94e, claim against
Sheriff Burns for denying Plaintiff access to a right leg prosthetic, housing,
showers, and recreation during his first and second detention at the Jail.

Count 2:

Fourteenth Amendment claim against Defendants for subjecting Plaintiff to
unconstitutional conditions of confinement by denying him a right leg
prosthetic, appropriate housing, recreation, and commissary at the Jail from
September 7, 2022 to October 7, 2022 (first detention).

Count 3:

Fourteenth Amendment claim against Etherton and Freeman for using
excessive force against Plaintiff or failing to intervene and protect him from
its use on or around October 2, 2022 (first detention).

Count 4:

Fourteenth Amendment claim against Etherton and Freeman for denying
Plaintiff medical care for his nasal and maxilla fractures on or around
October 2, 2022 (first detention).

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Count 5:

Fourteenth and/or Eighth Amendment claim against Defendants for
subjecting Plaintiff to unconstitutional conditions of confinement by
denying him a right leg prosthetic, appropriate housing, recreation, and
commissary at the Jail from January 27, 2023 to February 23, 2023 (second
detention).

Count 6:

Eighth Amendment claim against John Doe 1-4 for using excessive force
against Plaintiff or failing to intervene and protect him from its use on or
around February 20, 2023 (second detention).

Count 7:

Eighth Amendment claim against John Doe 1-4 for denying Plaintiff
medical care for his fractured fibula from February 20-23, 2023 (second
detention).

Any other claim that is mentioned in the Complaint but not addressed herein is considered
dismissed without prejudice as inadequately pled under Twombly. 1
Count 1
Count 1 arises under the ADA and/or Rehab Act. In order to articulate a claim in both
contexts, Plaintiff must allege that “(1) he is a qualified person (2) with a disability and (3) the
[Jail] denied him access to a program or activity because of his disability.” Jaros v. Ill. Dep’t of
Corr., 684 F.3d 667, 672 (7th Cir. 2012). Refusing to make a reasonable accommodation for a
disability is equivalent to the denial of access to a program or activity. Id. at 672. ADA and Rehab
Act claims are functionally identical. Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015).
Liberally construed, the allegations suggest that Sheriff Burns violated the ADA and Rehab Act
by depriving Plaintiff of access to Jail programs and benefits, including appropriate housing,
showers, recreation, and commissary during his first and second detention at the Jail, because of
his disability. Accordingly, Count 1 shall receive further review against Sheriff Burns, in his
official capacity.

See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (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”).

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Counts 2 and 5
Plaintiff brings a claim for unconstitutional conditions of confinement in Count 2 under
the Fourteenth Amendment applicable to pretrial detainees and Count 5 under the Eighth
Amendment applicable to convicted persons. However, he fails to name any particular defendant
in connection with these claims. Section 1983 liability hinges on personal involvement in or
responsibility for a constitutional deprivation. Stockton v. Milwaukee Cnty., 44 F.4th 605, 619
(7th Cir. 2022). Because Plaintiff identifies no one in connection with these unconstitutional
conditions, both claims shall be dismissed without prejudice.
Counts 3 and 4
Plaintiff’s excessive force claim in Count 3 and medical claim in Count 4 are governed by
the Fourteenth Amendment Due Process Clause, which prohibits all forms of punishment of
pretrial detainees. See Kingsley v. Henderson, 576 U.S. 389 (2015) (articulating applicable
standard for pretrial detainee’s excessive force claim); Thomas v. Dart, 39 F.4th 835 (7th Cir.
2022) (analyzing pretrial detainee’s failure to protect claim under Fourteenth Amendment);
Miranda v. County of Lake, 900 F.3d 335 (7th Cir. 2018) (articulating applicable standard for
pretrial detainee’s claim of inadequate medical care). A pretrial detainee must set forth facts
suggesting that each defendant “acted purposefully, knowingly, or perhaps even recklessly” in
response to conditions posing an excessive risk to his health or safety and that the defendant’s
actions were “objectively reasonable” based on “the totality of the facts and circumstances faced
by the individual.” Miranda, 900 F.3d at 352-54; McCann v. Ogle Cty., Illinois, 909 F.3d 881,
886 (7th Cir. 2018). The allegations state Fourteenth Amendment claims for excessive force in
Count 3 and for inadequate medical care in Count 4 against Defendants Etherton and Freeman.
Both claims shall proceed past screening against these defendants.

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Counts 6 and 7
Plaintiff’s excessive force claim in Count 6 and medical claim in Count 7 are governed by
the Eighth Amendment, which prohibits the cruel and unusual punishment of convicted persons.
The Eighth Amendment requires a showing of a sufficiently serious deprivation (an objective
standard) and deliberate indifference by the defendant (a subjective standard). Farmer v. Brennan,
511 U.S. 825, 834 (1994); Estelle v. Gamble, 429 U.S. 97, 104 (1976). To state a claim under
either amendment, Plaintiff must set forth allegations showing each defendant’s personal
involvement in a constitutional deprivation. West v. Atkins, 487 U.S. 42 (1988). Plaintiff’s
allegations state claims in Counts 6 and 7 against John Doe 1-4, so both claims shall receive further
review against these defendants, once they are identified and served with this lawsuit. Sheriff
Burn is already named, in an official capacity, and shall respond to all discovery aimed at
identifying John Doe 1-4 by name.
Disposition
The Complaint (Doc. 1) survives screening pursuant to 28 U.S.C. § 1915A, and the
following claims will receive further review against the below-listed defendants:
•

COUNT 1 against ROBERT BURNS, in his official capacity;

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COUNTS 3 and 4 against GARRETT ETHERTON and NICHOLAS
FREEMAN, in their individual capacities;

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COUNT 6 and 7 against JOHN DOE 1-4 (once identified), in their individual
capacities.

All other claims are dismissed without prejudice for failure to state a claim, including
COUNTS 2 and 5 against ALL DEFENDANTS.
As for COUNTS 1, 3, 4, 6, and 7, the Clerk of Court shall prepare for Defendants
ROBERT BURNS (official capacity), GARRETT ETHERTON, NICHOLAS FREEMAN,

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and JOHN DOE 1-4 (once identified): (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 (Doc. 1), 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 the Defendant to pay the full costs of formal service, to the
extent authorized by the Federal Rules of Civil Procedure.
If a Defendant cannot 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 and shall not be maintained in the court file or disclosed by the Clerk.
Defendants are ORDERED to file a timely responsive pleading to the Complaint (Doc. 1)
and shall not waive filing a reply. 42 U.S.C. § 1997e(g). Pursuant to Administrative Order
No. 244 and Local Rule 8.2, Defendants need only respond to the issues stated in this Merit
Review Order.
Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of Court
and the opposing parties 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 14 days after a transfer
or other change in address occurs. Failure to comply with this order may result in dismissal of this
action for want of prosecution. See FED. R. CIV. P. 41(b).

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The Clerk is DIRECTED to ENTER the standard qualified protective order pursuant
to the Health Insurance Portability and Accountability Act.
IT IS SO ORDERED.
DATED: May 13, 2024

s/ J. Phil Gilbert
J. PHIL GILBERT
United States District Judge
Notice to Plaintiff

Once identified, the Court will take the necessary steps to notify the Defendants of your
lawsuit and serve them with a copy of your Complaint. After service has been achieved,
Defendants will enter an appearance and file an Answer to your Complaint. It will likely take at
least 60 days from the date they are served with this lawsuit to receive the Defendants’ Answers,
but it is entirely possible that it will take 90 days or more. When Defendants have filed their
Answers, the Court will enter a Scheduling Order containing important information on deadlines,
discovery, and procedures. Plaintiff is advised to wait until counsel has appeared for Defendants
before filing any motions, to give the Defendants notice and an opportunity to respond to those
motions. Motions filed before Defendants’ counsel has filed an appearance will generally be
denied. Plaintiff need not submit evidence to the Court at this time.

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