Ogresevic v. Mayhill et al

Filing 5

OPINION AND ORDER granting leave to proceed against Ofc J Bunch in his individual capacity for monetary damages; dismissing all other claims; dismissing defendants M Fisher and M Mayhill. USM to effect service. Signed by Judge Jon E DeGuilio on 8/17/12. (smp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
FERID OGRESEVIC,
Plaintiff,
v.
M. MAYHILL, et al.,
Defendants.

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Case No. 3:12-CV-426 JD

OPINION AND ORDER
Ferid Ogresevic, a pro se prisoner, submitted a 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. A complaint must contain
sufficient factual matter to “state a claim that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
“Factual allegations must be enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550
U.S. at 555 (quotation marks, citations and footnote omitted). “[W]here the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct, the complaint has

alleged—but it has not shown—that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679
(quotation marks and brackets omitted). Thus, “a plaintiff must do better than putting a few words
on paper that, in the hands of an imaginative reader, might suggest that something has happened to
her that might be redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir.
2010) (emphasis in original). “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).
Ogresevic alleges that on March 12, 2011, Sgt. M. Mayhill and Ofc. J. Bunch were working
to move him to a different cell at the Miami Correctional Facility. When he refused, Sgt M. Fisher
ordered him to cuff up. It appears that he was cuffed without incident. However, when the officers
attempted to forcibly move him into the new cell, he resisted. It was then that Sgt. Fisher grabbed
his hand and kicked his left knee to force him onto the ground. Simultaneously, Ofc. Bunch was
holding his right arm. After Ogresevic was on the ground, Ofc. Bunch pulled his hand across
Ogresevic’s face and cut him with the handcuff key. As a result, Ogresevic suffered a 5.4 cm scar.
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). Giving
Ogresevic the benefit of the inferences to which he is entitled at the pleading stage of this
proceeding, he has stated a claim for an excessive use of force against Ofc. Bunch for cutting his
face with the handcuff key. Clearly, that was neither a reasonable nor necessary use of force.
Nevertheless, it remains to be proven whether it was merely the unintended consequence of

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removing his hand from underneath Ogresevic’s head or whether Ofc. Bunch maliciously and
sadistically chose to cut Ogresevic’s face for the purpose of injuring him.
The claims against Sgt. Fisher and Sgt. Mayhill are different. Ogresevic does not claim that
he suffered any pain or injury as a result of Sgt. Fisher taking him to the ground when he refused to
move. Neither does he argue that it was unreasonable to restrain him on the ground when he refused
to follow a direct order to move. “Where a prison security measure is undertaken to resolve a
disturbance . . . we think the question whether the measure taken inflicted unnecessary and wanton
pain and suffering ultimately turns on whether force was applied in a good faith effort to maintain
or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Whitley
v. Albers, 475 U.S. 312, 321-322 (1986) (quotation marks and citation omitted).
When the ever-present potential for violent confrontation and conflagration,
ripens into actual unrest and conflict, the admonition that a prison’s internal security
is peculiarly a matter normally left to the discretion of prison administrators carries
special weight. Prison administrators should be accorded wide-ranging deference in
the adoption and execution of policies and practices that in their judgment are needed
to preserve internal order and discipline and to maintain institutional security. That
deference extends to a prison security measure taken in response to an actual
confrontation with riotous inmates, just as it does to prophylactic or preventive
measures intended to reduce the incidence of these or any other breaches of prison
discipline. It does not insulate from review actions taken in bad faith and for no
legitimate purpose, but it requires that neither judge nor jury freely substitute their
judgment for that of officials who have made a considered choice.
Id. at 322 (quotation marks, citations, and ellipsis omitted). Consequently, Whitley explains that “a
mere dispute over the reasonableness of a particular use of force or the existence of arguably
superior alternatives” does not establish a basis for liability. Id. Here, Ogresevic has not plausibly
alleged that Sgt. Fisher used excessive force against him.
Neither has he plausibly alleged that either Sgt. Fisher or Sgt. Mayhill could have prevented
Ofc. Bunch from cutting his face. A bystander “can be held liable under § 1983 if [he] (1) had reason
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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). Here, Ogresevic does not allege that either Sgt. Fisher or Sgt. Mayhill
could have anticipated that Ofc. Bunch was going to cut his face with the handcuff key, nor that they
could have done anything to have prevented it. Therefore, the mere fact that they were bystanders
while it happened is insufficient to state a claim against them.
For the foregoing reasons, the court:
(1) GRANTS Ferid Ogresevic leave to proceed against Ofc. J. Bunch in his individual
capacity for monetary damages for cutting his face with a handcuff key on March 12, 2011, in
violation of the Eighth Amendment;
(2) DISMISSES all other claims;
(3) DISMISSES Sgt. M. Mayhill and Sgt. M. Fisher;
(4) DIRECTS the clerk to transmit the summons and USM-285 for Ofc. J. Bunch to the
United States Marshals Service along with a copy of this order and a copy of the complaint;
(5) DIRECTS the United States Marshals Service, pursuant to 28 U.S.C. § 1915(d), to effect
service of process on Ofc. J. Bunch; and
(6) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Ofc. J. Bunch respond, as provided
for in the Federal Rules of Civil Procedure and N.D. IND. L.R. 10-1(b), only to the claim for which
the plaintiff has been granted leave to proceed in this screening order.1
SO ORDERED.

1
N.D. IND. L.R. 10-1(b) exempts answers to pro se complaints from the obligation to include a verbatim,
paragraph by paragraph recitation of the complaint.

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ENTERED: August 17, 2012

/s/ JON E. DEGUILIO
Judge
United States District Court

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