Ward v. Franciscy

Filing 14

OPINION AND ORDER re 11 PRO SE AMENDED COMPLAINT filed by Plaintiff Kerwin M Ward. Plaintiff GRANTED leave to proceed against Defendants for damages in their personal capacities for damages on the claim that Defendants used excessive and unnecessar y force when they arrested Plaintiff. Defendants ORDERED to respond to the Amended Complaint as provided for in the FRCP. US Marshal's Service DIRECTED to effect service of process on Defendants and Clerk DIRECTED to ensure that a copy of this Order, the Summons and the Complaint are served on Defendants. Signed by Judge William C Lee on 4/20/11. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
KERWIN M. WARD,
Plaintiff,
v.
JOSHUA FRANCISCY, et al.,
Defendants.

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CAUSE NO. 1:10-CV-0429 WL

OPINION AND ORDER
Kerwin Ward, a prisoner housed at the Westville Correctional Facility, filed a
complaint pursuant to 42 U.S.C. § 1983, alleging violation of his federally protected
rights during his arrest. In his original complaint, Ward named Fort Wayne police
officer Joshua Franciscy as the sole defendant. The Court screened the complaint
pursuant to 28 U.S.C. § 1915A(a), and allowed Ward to proceed against Officer
Franciscy for damages in his personal capacity on the claim that he used excessive and
unnecessary force when he arrested Ward. The Plaintiff has now filed an amended
complaint in which he re-pleads his claim against Officer Franciscy, and adds Fort
Wayne Police Officer Michael Bell as a defendant on the same claim.
Pursuant to 28 U.S.C. § 1915A(a), 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. FED. R. CIV. P. 12(b)(6) provides for the dismissal of a
complaint, or any portion of a complaint, for failure to state a claim upon which relief

can be granted. Courts apply the same standard under § 1915A as when addressing a
motion under RULE 12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006).
“Dismissal is appropriate only when it appears beyond doubt that the plaintiff can
prove no set of facts that would entitle him to relief.” Id.
Ward brings this action under 42 U.S.C. § 1983, which provides a cause of action
to redress the violation of federally secured rights by a person acting under color of
state law. Burrell v. City of Mattoon, 378 F.3d 642 (7th Cir. 2004). To state a claim under §
1983, a plaintiff must allege violation of rights secured by the Constitution or laws of the
United States, and must show that a person acting under color of state law committed
the alleged deprivation. West v. Atkins, 487 U.S. 42 (1988). The first inquiry in every §
1983 case is whether the plaintiff has been deprived of a right secured by the
Constitution or laws of the United States. Baker v. McCollan, 443 U.S. 137, 140 (1979).
According to the amended complaint, Officers Franciscy and Bell arrested Ward
in his apartment. Ward alleges that Officer Franciscy hit him in the face while he was
handcuffed, without justification, causing the loss of one of his teeth. He also alleges
that Officer Bell used a chemical agent on him without justification. Finally, Ward
alleges that Officer Franciscy sprayed him with a chemical agent, again without
justification, after he was placed in the police car to be taken to the hospital to deal with
his injuries. Ward asserts that the defendants’ actions violated his rights protected by
the Eighth and Fourteenth Amendments to the United States Constitution. (DE 11 at 4).

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“In addressing an excessive force claim brought under § 1983, analysis begins by
identifying the specific constitutional right allegedly infringed by the challenged
application of force.” Graham v. Conner, 490 U.S. 386, 394, (1989). “All claims that law
enforcement officers have used excessive force — deadly or not — in the course of an
arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under
the Fourth Amendment and its ‘reasonableness standard.’” Graham v. Conner, 490 U.S.
at 395, (emphasis in original). The Fourteenth Amendment’s due process clause protects
pretrial detainees from excessive use of force, and the Eighth Amendment’s cruel and
unusual punishments clause protects those convicted of crimes from excessive use of
force. Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979). Ward’s claim arise during his arrest,
so this complaint must be analyzed under Fourth Amendment standards.
“Determining whether the force used to effect a particular seizure is ‘reasonable’
under the Fourth Amendment requires a careful balancing of ‘the nature and quality of
the intrusion on the individual’s Fourth Amendment interests’ against the
countervailing governmental interests at stake.” Graham v. Conner, 490 U.S. at 396,
quoting United States v. Place, 462 U.S. 696, 703 (1983). “Fed. R. Civ. P. 8 establishes a
system of notice pleading,” and a complaint may not be dismissed at the pleadings
stage “unless no relief could be granted ‘under any set of facts that could be proved
consistent with the allegations.’” Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998),
quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Giving the plaintiff the benefit
of the inferences to which he is entitled at the pleadings stage, his amended complaint’s

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allegations are sufficient to state a Fourth Amendment claim against the defendants
upon which relief can be granted under § 1983.
For the foregoing reasons, the Court:
(1) GRANTS the plaintiff leave to proceed against the defendants for
damages in their personal capacities for damages on his claim that they used
excessive and unnecessary force when they arrested him;
(2) Pursuant to 42 U.S.C. § 1997e(g)(2), ORDERS that the defendants
respond to the amended complaint as provided for in the Federal Rules of Civil
Procedure; and
(3) DIRECTS the marshals service to effect service of process on the
defendants, and DIRECTS the clerk’s office to ensure that a copy of this order is
served on them along with the summons and complaint.
SO ORDERED.
DATED: April 20, 2011
s/William C. Lee
William C. Lee, Judge
United States District Court

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