Swann v. Wilson et al

Filing 5

OPINION AND ORDER re 2 PRO SE COMPLAINT filed by Plaintiff Terrance D Swann. Plaintiff GRANTED leave to proceed against Defendants Sgt Thomas Potts, Sgt Charles Wilson and Lt Christopher Dustin as outlined in Order. All other claims are DISMISSED. Indiana Department of Correction is DISMISSED. Clerk DIRECTED to transmit Summons and USM-285 forms to US Marshal's Service along with a copy of the Complaint and this Order. US Marshal's Service DIRECTED to effect service of process on remaining Defendants. Remaining Defendants ORDERED to respond to only the claims for which Plaintiff has been granted leave to proceed. Signed by Chief Judge Philip P Simon on 10/1/14. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TERRANCE D. SWANN,
Plaintiff,
vs.
CHARLES WILSON, et al.,
Defendants.

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CAUSE NO. 3:14-CV-1888 PS

OPINION AND ORDER
Terrance D. Swann, a pro se prisoner, filed a complaint alleging that three guards
used excessive force against him. Pursuant to 28 U.S.C. § 1915A, I must review the
merits of this 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.
Swann alleges that just before 8 p.m. on August 22, 2013, Sgt. Thomas Potts and
Sgt. Charles Wilson sprayed him with a chemical agent. He states that Lt. Christopher
Dustin then handcuffed him. Swann alleges that Lt. Dustin and Sgt. Wilson then
repeatedly hit him in the head and face while escorting him to a cell where they left him
without medical attention or the ability to clean off the chemical agent. These
allegations plausibly allege that the three officers used excessive force against Swann
“maliciously and sadistically for the very purpose of causing harm.” Whitley v. Albers,
475 U.S. 312, 320-21 (1986) (quotation marks and citation omitted). Though Swann did
not provide any description of his injuries, given the nature of the beating he has

described, he has also plausibly alleged that he was denied medical treatment. See
Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997) (the Constitution is violated when
a defendant is deliberately indifferent to a medical condition that a layperson would
obviously recognize needed a doctor’s attention)
In addition, Swann also names the Indiana Department of Correction as a
defendant. However, the Eleventh Amendment precludes a suit for damages against a
state and its agencies. Kashani v. Purdue Univ., 813 F.2d 843, 845 (7th Cir. 1987). Though
Swann asks for injunctive relief ordering the Department to review and enforce its
policies,
[t]he PLRA circumscribes the scope of the court’s authority to enter
an injunction in the corrections context. Where prison conditions are
found to violate federal rights, remedial injunctive relief must be narrowly
drawn, extend no further than necessary to correct the violation of the
Federal right, and use the least intrusive means necessary to correct the
violation of the Federal right. This section of the PLRA enforces a point
repeatedly made by the Supreme Court in cases challenging prison
conditions: Prison officials have broad administrative and discretionary
authority over the institutions they manage.
Westefer v. Neal, 682 F.3d 679 (7th Cir. 2012) (quotation marks, brackets, and citations
omitted; emphasis added). Because the PLRA does not permit injunctive relief based on
a prison policy, the Indiana Department of Correction will be dismissed.
For the foregoing reasons, the court:
(1) GRANTS Terrance D. Swann, leave to proceed against Sgt. Thomas Potts,
Sgt. Charles Wilson, and Lt. Christopher Dustin in their individual capacities for
compensatory and punitive damages for subjecting him to an excessive use of force and
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denying him medical treatment on August 22, 2013, in violation of the Eighth
Amendment;
(2) DISMISSES all other claims;
(3) DISMISSES the Indiana Department of Correction;
(4) DIRECTS the clerk to transmit the summons and USM-285 form for Sgt.
Thomas Potts, Sgt. Charles Wilson, and Lt. Christopher Dustin to the United States
Marshals Service along with a copy of the complaint and this order;
(5) DIRECTS the United States Marshals Service, pursuant to 28 U.S.C. § 1915(d),
to effect service of process on Sgt. Thomas Potts, Sgt. Charles Wilson, and Lt.
Christopher Dustin ; and
(6) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Sgt. Thomas Potts, Sgt.
Charles Wilson, and Lt. Christopher Dustin respond, as provided for in the Federal
Rules of Civil Procedure and N.D. IND. L.R. 10-1(b), to only the claims for which the
plaintiff has been granted leave to proceed in this screening order.
SO ORDERED.
ENTERED: October 1, 2014
s/Philip P. Simon
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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