Brown v. Jay County Sheriff's Department

Filing 14

OPINION AND ORDER GRANTING pltf lv to proceed agnst Dep Matt Simmons and Officer Joseph Hibbard in their individual capacities for monetary damages for excessive use of force; GRANTING pltf lv to proceed agnst Officer Vicki Wickelman in her indiv cap acity for monetary dmgs for failure to intervene; DISMISSING all other claims; DISMISSING Chief Deputy Rob Bicknell and Dr. Mark Haggenjos; DIRECTING clk to transmit summons and 285s to USM w/cp of this order and a copy of amended complaint; DIRECTING USM to effect svc of process. Signed by Judge Jon E DeGuilio on 5/13/11. (lrm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JASON B. BROWN,
Plaintiff,
v.
JAY COUNTY SHERIFF’S DEPARTMENT,
et al.,
Defendants.

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Case No. 1:10-CV-304 JD

OPINION AND ORDER
Jason B. Brown, a pro se prisoner, submitted an amended complaint under 42 U.S.C. § 1983.
“A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations omitted). Nevertheless, pursuant
to 28 U.S.C. § 1915A, the court must review the merits of a prisoner complaint and dismiss it if the
action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief. “In order to state a claim under
§ 1983 a plaintiff must allege: (1) that defendants deprived him of a federal constitutional right; and
(2) that the defendants acted under color of state law.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir.
2006).
Here, Brown alleges that on September 1, 2008, Deputy Matt Simmons pushed him into a
wall at the Jay County Jail where he was being housed as an inmate. As a result, he hit his face and
forehead. He alleges that Deputy Simmons then tackled him, shocked him with a Taser, and choked
him while Officer Joseph P. Hibbard held him down. Based on this complaint, it is reasonable to
infer that he alleges that they did these things even though he was not resisting nor threatening them.

It is also reasonable to infer that he suffered serious injuries. “Although the Eighth Amendment
applies only to convicted persons, pretrial detainees . . . are entitled to the same basic protections
under the Fourteenth Amendment’s due process clause. Accordingly, [court’s] apply the same legal
standards to deliberate indifference claims brought under either the Eighth or Fourteenth
Amendment.” Minix v. Canarecci, 597 F.3d 824, 831 (7th Cir. 2010). A violation of the Eighth
Amendment’s Cruel and Unusual Punishments Clause consists of two elements: (1) objectively,
whether the injury is sufficiently serious to deprive the prisoner of the minimal civilized measure
of life’s necessities, and (2) subjectively, whether the prison official’s actual state of mind was one
of deliberate indifference to the deprivation. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Though
the facts provided by Brown in this complaint are sketchy, they are sufficient to state a claim against
these two officers for an excessive use of force in violation of the Fourteenth Amendment. See
Whitley v. Albers, 475 U.S. 312, 321-322 (1986).
Next, Brown alleges that Officer Vicki Wickelman observed the attack, but did not intervene
to stop it. “Even as a bystander, [she] can be held liable under § 1983 if [she] (1) had reason to know
that a fellow officer was using excessive force or committing a constitutional violation, and (2) had
a realistic opportunity to intervene to prevent the act from occurring.” Lewis v. Downey, 581 F.3d
467, 472 (7th Cir. 2009). Though it is unclear that Brown will be able to ultimately prove either of
those elements, given the duration of the alleged attack by the two officers, it may be that she had
an opportunity to intervene if they were using excessive force. Therefore, Brown has stated a claim
against Wickelman for failing to intervene in violation of the Fourteenth Amendment.

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Brown alleges that Dr. Mark Haggenjos refused to refer him to an outside physician or to
perform unspecified medical tests that Brown wanted. Medical malpractice and incompetence do
not state a claim of deliberate indifference. Walker v. Peters, 233 F.3d 494 (7th Cir. 2000).
For a medical professional to be liable for deliberate indifference to an
inmate’s medical needs, he must make a decision that represents such a substantial
departure from accepted professional judgment, practice, or standards, as to
demonstrate that the person responsible actually did not base the decision on such
a judgment.
Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008) (quotation marks and citations omitted). Here,
Brown has not identified what tests he wanted, nor how the doctor’s treatment was a substantial
departure from accepted professional judgment.
[A] complaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face. A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. ___, ___; 129 S. Ct. 1937, 1949; 173 L. Ed. 2d 868, 884 (2009)
(quotation marks and citations omitted). Though it is clear that Brown disagreed with the doctor’s
treatment decision, “disagreement with medical professionals . . . does not state a cognizable Eighth
Amendment Claim under the deliberate indifference standard of Estelle v. Gamble [429 U.S. 97
(1976)].” Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003). Prisoners are “not entitled to
demand specific care. [They are] not entitled to the best care possible.” Forbes v. Edgar, 112 F.3d
262, 267 (7th Cir.1997). Therefore, the claim against Dr. Haggenjos will be dismissed.
Finally, Brown alleges that Chief Deputy Rob Bicknell denied his request for outside
medical attention. This does not state a claim. Brown was seen by a doctor at the jail and
If a prisoner is under the care of medical experts a non-medical prison official
will generally be justified in believing that the prisoner is in capable hands. This
follows naturally from the division of labor within a prison. Inmate health and safety
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is promoted by dividing responsibility for various aspects of inmate life among
guards, administrators, physicians, and so on. Holding a non-medical prison official
liable in a case where a prisoner was under a physician’s care would strain this
division of labor.
Greeno v. Daley, 414 F.3d 645, 656 (7th Cir. 2005) (ellipsis omitted) quoting Spruill v. Gillis, 372
F.3d 218, 236 (3rd Cir. 2004). Based on the facts alleged in this complaint, it is not plausible to infer
that Chief Bicknell was not justified in believing that the medical attention provided by the jail
doctor was proper and adequate. Therefore the claim against him will be dismissed.
For the foregoing reasons, the court:
(1) GRANTS Jason B. Brown leave to proceed against Deputy Matt Simmons and Officer
Joseph G. Hibbard in their individual capacities for monetary damages for excessive use of force
in violation of the Fourteenth Amendment;
(2) GRANTS Jason B. Brown leave to proceed against Officer Vicki Wickelman in her
individual capacity for monetary damages for failure to intervene in violation of the Fourteenth
Amendment;
(3) DISMISSES all other claims;
(4) DISMISSES Chief Deputy Rob Bicknell and Dr. Mark Haggenjos;
(5) DIRECTS the clerk to transmit the summons and USM-285’s for Deputy Matt Simmons,
Officer Joseph G. Hibbard, and Officer Vicki Wickelman to the United States Marshals Service
along with a copy of this order and a copy of the amended complaint (ECF 4);
(6) DIRECTS the United States Marshals Service, pursuant to 28 U.S.C. § 1915(d), to effect
service of process on Deputy Matt Simmons, Officer Joseph G. Hibbard, and Officer Vicki
Wickelman; and

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(7) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Deputy Matt Simmons, Officer
Joseph G. Hibbard, and Officer Vicki Wickelman respond, as provided for in the Federal Rules of
Civil Procedure and N.D. IND. L.R. 10.1, only to the claims for which the plaintiff has been granted
leave to proceed in this screening order.1
SO ORDERED.
ENTERED: May 13, 2011
/s/ JON E. DEGUILIO
Judge
United States District Court

1
N.D. IND. L.R. 10.1 does not require a verbatim, paragraph by paragraph recitation and response to pro se
complaints.

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