Ellis v. Olmstead
Filing
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OPINION AND ORDER granting plaintiff leave to proceed against Lt. Russell Olmstead for compensatory damages for use of excessive force. All other claims are dismissed. U.S. Marshals Service directed to effect service of process. Lt. Olmstead ordered to respond as provided for in the FRCP and N.D. IND. L.R. 10.1. Signed by Judge Rudy Lozano on 9/15/11. (ksc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DEMAJIO J. ELLIS,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
LT. RUSSELL OLMSTEAD,
Defendant.
NO. 3:11-CV-232
OPINION AND ORDER
Demajio J. Ellis, a pro se prisoner, filed a complaint under
42 U.S.C. § 1983. (DE 1.) For the reasons set forth below, the
Court: (1) GRANTS the plaintiff leave to proceed against Lieutenant
Russell
Olmstead
in
his
individual
capacity
for
compensatory
damages for using excessive force against him in violation of the
Fourteenth Amendment; (2) DISMISSES all other claims; (3) DIRECTS
the
United
States
Marshals
Service,
pursuant
to
28
U.S.C.
§ 1915(d), to effect service of process on Lieutenant Russell
Olmstead; and (4) ORDERS Lieutenant Russell Olmstead, pursuant to
42 U.S.C. § 1997e(g)(2), to respond, as provided for in the FEDERAL
RULES
OF
CIVIL PROCEDURE and N.D. IND. L.R. 10.1, only to the claim for
which the plaintiff has been granted leave to proceed in this
screening order.
BACKGROUND
Ellis alleges that on the evening of May 9, 2011, while he was
a pretrial detainee at the St. Joseph County Jail, he was being
housed in a “padded cell” when he asked Deputy Godsey if he could
use the washroom. (DE 1 at 6.) According to Ellis, Deputy Godsey
told him to “eat my shit.” (Id.) Ellis claims that he “got mad,”
and that to get even with Deputy Godsey he “took a crap on my cover
then picked it up [and] put it on the window[.]” (Id.) Shortly
thereafter, Sergeant Wisnewski, Lieutenant Olmstead, Deputy Heath,
and Deputy Brothers came to take Ellis to the booking shower. (Id.)
According to Ellis, Lieutenant Olmstead was carrying pepper spray
at the time. (Id.)
Ellis claims the officers took him to the showers, and that
after he was in the shower for about three minutes, Deputy Heath
began saying “stop resisting,” even though he was not doing
anything wrong. (Id. at 7.) In his view, Deputy Heath made that
statement “so that it covers them.” (Id.) Ellis claims that a few
minutes later Lieutenant Olmstead opened up the shower curtain and
said, “have you ever got sprayed,” at which point he sprayed Ellis
with the entire can of pepper spray. (Id.) He claims that while he
was being sprayed Deputy Heath was “laughing and laughing.” (Id.)
He claims Lieutenant Olmstead then told him “this will happen every
time I have to come get you for any reason.” (Id.) He claims he was
put in a restraint chair with the pepper spray still on him, and
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that he experienced pain and discomfort from the pepper spray for
a few days. (Id.)
DISCUSSION
Pursuant to 28 U.S.C. § 1915A, the court must review a
complaint filed by a prisoner 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. 28 U.S.C. § 1915A(a), (b). The court
applies the same standard as when deciding a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). Lagerstrom v.
Kingston, 463 F.3d 621, 624 (7th Cir. 2006).
To survive dismissal, a complaint must state a claim for
relief that is plausible on its face. Bissessur v. Indiana Univ.
Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009). “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.” Id. at 603. The
court must bear in mind that “[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).
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Here, Ellis is suing Lieutenant Olmstead for using excessive
force against him. (DE 1.) Because Ellis was a pretrial detainee at
the time of these events, the Fourteenth rather than the Eighth
Amendment applies. Lewis v. Downey, 581 F.3d 467, 475 (7th Cir.
2009).
The
standards
that
apply
are
functionally
equivalent,
however, and “anything that would violate the Eighth Amendment
would also violate the Fourteenth Amendment.” Id. In either case,
the “core requirement” for an excessive force claim is that the
defendant “used force not in a good-faith effort to maintain or
restore discipline, but maliciously and sadistically to cause
harm.” Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir. 2009)
(internal citation omitted). Several factors guide the inquiry of
whether an officer’s use of force was legitimate or malicious,
including the need for an application of force, the amount of force
used, and the extent of the injury suffered by the prisoner. Id.
Here, giving Ellis the inferences to which he is entitled at
this stage, he has alleged an excessive force claim against
Lieutenant Olmstead. The court is cognizant that Ellis disrupted
the facility by smearing feces on his window; however, the facts as
he alleges them are that Lieutenant Olmstead sprayed him with
pepper spray not when he was being disruptive but some time later
when he was simply taking a shower. Ellis specifically alleges that
he was not doing anything wrong at the time Lieutenant Olmstead
sprayed him with an entire can of pepper spray. Furthermore, the
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comments he alleges that the officers made to him, and the fact
that Deputy Heath was allegedly laughing during this incident,
support an inference that Lieutenant Olmstead used force not to
restore order but sadistically and maliciously to cause harm.
Although further factual development may show that Ellis was
resisting or otherwise disobeying an order at the time he was
sprayed with pepper spray, at this stage the court must accept
Ellis’s allegations as true. Taking Ellis’s allegations as true, he
has alleged an excessive force claim against Lieutenant Olmstead.
CONCLUSION
For the reasons set forth above, the Court:
(1) GRANTS the
plaintiff leave to proceed against Lieutenant Russell Olmstead in
his
individual
excessive
force
capacity
for
compensatory
damages
for
against
him
in
of
Fourteenth
violation
the
using
Amendment; (2) DISMISSES all other claims; (3) DIRECTS the United
States Marshals Service, pursuant to 28 U.S.C. § 1915(d), to effect
service of process on Lieutenant Russell Olmstead; and (4) ORDERS
Lieutenant Russell Olmstead, pursuant to 42 U.S.C. § 1997e(g)(2),
to respond, as provided for in the FEDERAL RULES
OF
CIVIL PROCEDURE and
N.D. IND. L.R. 10.1, only to the claim for which the plaintiff has
been granted leave to proceed in this screening order.
DATED:
September 15, 2011
/s/RUDY LOZANO, Judge
United States District Court
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