Scruggs v. Miller et al

Filing 7

OPINION AND ORDER DENYING 3 Motion for Preliminary Injunction; DENYING 3 Motion for TRO; DENYING 4 Motion for Preliminary Injunction; Clerk to send a copy of Scruggs motions (DE 3, 4) along with a copy of this order to the Superintendent of the Westville Correctional Facility; Plaintiff is granted leave to proceed on a claim against Stg. Miller, Stg. Sinclair and Lt. Creasy in their individual capacities for monetary damages for using excessive forceagainst him on two occasions on Nove mber 23, 2015 and one occasion on an unspecified date; All other claims are DISMISSED; Nurse Cook and C.O. Sternberg are DISMISSED; US Marshal to effect service of process on Stg. Miller, Stg. SinClair and Lt. Creasy pursuant to 28 U.S.C. § 1915 (d); and ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Stg. Miller, Stg. SinClair and Lt. Creasy respond, as provided for in the Federal Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the claims for which the plaintiff has been granted leave to proceed in this screening order. (cc: Scruggs, USM, Superintendent w/Motions 3 and 4 ). Signed by Judge Jon E DeGuilio on 2/8/16. (mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CHRISTOPHER L. SCRUGGS,
Plaintiff,
v.
STG. MILLER, et al.,
Defendants.

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Cause No. 3:16-CV-050 JD

OPINION AND ORDER
Christopher L. Scruggs, a pro se prisoner, has filed a complaint under 42 U.S.C. § 1983,
along with two motions for preliminary injunction, complaining that officers at the Westville
Control Unit have pepper sprayed him and have been harassing him to get revenge for his
throwing water on a fellow officer. (DE 2, 3, 4.)

I.

Screening Pursuant to 28 U.S.C. § 1915A
The court must review 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. 28 U.S.C. § 1915A(a), (b). Courts apply the
same standard under Section 1915A as when deciding a motion under FEDERAL RULE OF CIVIL
PROCEDURE 12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive a
motion to dismiss under Rule 12(b)(6), 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

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 603.
In determining whether the complaint states a claim, 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). To state a claim under 42 U.S.C. § 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).
Scruggs is presently an inmate at the Westville Control Unit (“WCU”), the segregation
unit of a maximum security correctional facility.1 According to the complaint and motions for
preliminary injunction, on November 22, 2015, Scruggs threw water onto C.O. Sternberg as she
passed by his cell. C.O. Sternberg then called Stg. Miller and Stg. SinClair for assistance. When
Miller and SinClair arrived, Sternberg told them that the substance Scruggs threw on her burned.
Miller and SinClair told Scruggs that he “was a nigger and that [he] would see what niggers get,
and that [Scruggs] fucked up by putting whatever on a ‘white woman.’” (DE 2 at 3.) Scruggs
then got into a verbal altercation with both Miller and SinClair. Miller and SinClair left but
returned the next day for a cell extraction. Though Scruggs agreed to “cuff up” voluntarily,
Miller and SinClair, under the orders of Lt. Creasy, nevertheless pepper sprayed him twice to get
revenge for his throwing water on Sternberg a day earlier. (DE 3 at 3.) Subsequently, Miller and
SinClair again pepper sprayed Scruggs for having on a T-shirt and when he was on his way to

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This court has recognized WCU as a “supermax” facility. See Littler v. Ind. Dep’t of Corr., No. 3:11-CV218, 2013 WL 587901 (N.D. Ind. order dated Feb. 12, 2013); Smith v. Wilson, No. 3:07-CV-338, 2007 WL 2903197
(N.D. Ind. order dated Oct. 1, 2007). “Supermax facilities are maximum-security prisons with highly restrictive
conditions, designed to segregate the most dangerous prisoners from the general prison population.” Wilkinson v.
Austin. 545 U.S. 209, 213 (2005).

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sleep. This, too, was done out of revenge.
First, Scruggs alleges that Miller and SinClair used excessive force against him three
times in violation of the Eighth Amendment by using pepper spray unnecessarily. 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. The use of pepper spray on its own does not violate the
Constitution. Soto v. Dickey, 744 F.3d 1260, 1270 (7th Cir. 1984). However, when prison
officials use it for the sole purpose of punishment or to inflict pain, Constitutional liability
attaches. Id.
Here, while light on detail, the complaint can be read to allege that Miller and SinClair
pepper sprayed Scruggs on three occasions to maliciously or sadistically to cause him harm.
Giving him the inferences to which he is entitled at this stage, he has alleged enough to proceed
further against both of them. And because their supervisor, Creasy, approved of and ordered
their conduct, Scruggs has stated a claim against Creasy, too. Chavez v. Illinois State Police, 251
F.3d 612, 651 (7th Cir. 2001) (citations and internal quotation marks omitted). Further factual
development may show these officers acted reasonably under the circumstances, but Scruggs has
alleged enough at this stage.
After Scruggs was pepper sprayed on November 23, 2015, he told Creasy that he needed
medical attention because he spit up blood. Scruggs also told Nurse Cook that his nose was

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bleeding from the pepper spray, but she didn’t see any blood. Neither Creasy nor Nurse Cook
provided Scruggs with any medical treatment. Scruggs alleges that Creasy and Nurse Cook
denied him proper medical care under the Eighth Amendment.
Inmates are entitled to adequate medical care. Estelle v. Gamble, 429 U.S. 97, 104
(1976). To establish liability, a prisoner must satisfy both an objective and subjective
component by showing: (1) his medical need was objectively serious; and (2) the defendant
acted with deliberate indifference to that medical need. Farmer, 511 U.S. at 834. A medical need
is “serious” if it is one that a physician has diagnosed as mandating treatment, or one that is so
obvious that even a lay person would easily recognize the necessity for a doctor’s attention.
Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). “Conduct is deliberately indifferent when
the official has acted in an intentional or criminally reckless manner, i.e., the defendant must
have known that the plaintiff was at serious risk of being harmed and decided not to do anything
to prevent that harm from occurring even though he could have easily done so.” Board v.
Farnham, 394 F.3d 469, 478 (7th Cir. 2005). For a medical professional to be liable under the
Eighth Amendment for deliberate indifference to an inmate’s medical needs, he or she 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).
Scruggs’ claim fails on both fronts. To start, there is nothing to indicate that Scruggs had
an objectively serious medical need. At most, he suffered from a simple bloody nose. As pled, it
is implausible to conclude that this is a serious medical need requiring medical attention.
Zentmyer v. Kendall County, Ill., 220 F.3d 805, 810 (7th Cir. 2000) (holding that minor scrapes

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and bruises do not amount to serious medical needs); Harmon v. Jordan, No. 12-CV-21, 2014
WL 4472693, *6 (S.D. Ill. Sept. 11, 2014) (holding that nurse being aware that the plaintiff had a
bloody nose was not enough to put her on notice of any serious medical condition); Cirilla v.
Kankakee County Jail, 438 F.Supp.2d 937, 944 (C.D. Ill. 2006). Moreover, there are no
allegations that show Creasy or Nurse Cook believed any serious harm existed because of his
bloody nose. Boyce v. Moore, 314 F.3d 884, 890 (7th Cir. 2002) (holding that if officials are
aware of only minor symptoms the plaintiff is not entitled to relief). Because the allegations
show Scruggs suffered from nothing more than a simple bloody nose, there can be no
constitutional claim for deliberate indifference of a serious medical need. In addition, as a nonmedical staff member, Creasy was entitled to defer to the judgment of Nurse Cook regarding
Scruggs’ care. See Hayes v. Snyder, 546 F.3d 516, 526 (7th Cir. 2008).
Next, Scruggs alleges in his motion for preliminary injunction that Miller has “threatened
his food supply.” (DE 3 at 1.) The Eighth Amendment prohibits conditions of confinement that
deny inmates “the minimal civilized measure of life’s necessities.” Townsend v. Fuchs, 522 F.3d
765, 773 (7th Cir. 2008). Inmates are entitled to adequate food, clothing, shelter, and medical
care. Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009). However, “the Constitution does not
mandate comfortable prisons,” and conditions that may seem “restrictive” or “even harsh” are
“part of the penalty that criminal offenders pay for their offenses against society.” Rhodes v.
Chapman, 452 U.S. 337, 347-49 (1981). As a result of this unspecified threat, Scruggs claims
that he has not eaten on the days Miller works, which has been 12 days, equaling 36 meals, since
November 23, 2015.
Here, it is not plausible to infer that Scruggs is being denied Constitutionally adequate

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food. Scruggs does not allege that Miller or anyone else is depriving him of receiving food. Nor
does Scruggs allege Miller has actually tampered with his food. Instead, Scruggs refuses to eat
based on Miller’s unspecified threats. To that end, Scruggs does not explain how Miller has
threatened his food or why those threats have made him decide not to eat. Moreover, though
Scruggs claims to have missed numerous meals over the past three months, he has failed to
explain how these missed meals have caused him any injuries. Without more, as pled these
allegations fail to state a plausible claim. However, to be clear, this is not necessarily the end of
the road for the claim. Scruggs has the opportunity to seek leave to file an amended complaint
and clarify or elaborate on the claim if he believes that doing so would address the above noted
deficiencies.
Next, Scruggs complains in his motion for preliminary injunction about Miller and
SinClair’s verbal harassment. He claims they call him “nigger,” tell him they “want him dead,”
tell him “they will have the KKK go see his family” and have also said they will put his
children’s “photographs on a child porn web site.” (DE 3 at 1, 2.) Typically, verbal harassment
does not trigger constitutional protections. See DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir.
2000) (“[S]imple verbal harassment does not constitute cruel and unusual punishment, deprive a
prisoner of a protected liberty interest or deny a prisoner equal protection of the laws.”).
However, verbal abuse can constitute cruel and unusual punishment under the Eighth
Amendment in limited situations. Beal v. Foster, 803 F.3d 356, 357-58 (7th Cir. 2015). In Beal,
the guard called an inmate terms like “punk, fag, sissy and queer,” in the presence of other
inmates thereby “increas[ing] the likelihood of sexual assaults on him.” Id. at 358. Because the
harassment “may have made him a pariah to his fellow inmates and inflicted significant

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psychological harm on him,” the court found that the harassment was actionable. Id. at 359.
Here, the alleged comments by Miller and SinClair - while certainly deplorable - have
neither harmed nor increased the risk of any future harm to Scruggs. There are no allegations
that the defendants took any action in furtherance of any of the alleged verbal harassment. Nor is
there any indication that these comments caused Scruggs to suffer any psychological harm. For
these reasons, the statements do not plausibly give rise to a constitutional claim. DeWalt, 224
F.3d at 612. While the current allegations amount to no more than verbal harassment, Scruggs
may be able to state a claim. Again, Scruggs has the opportunity to seek leave to file an amended
complaint and clarify or elaborate on his claims if he believes that doing so would address the
above noted deficiencies.

II.

Preliminary Injunctions
The court turns then to the two motions for a preliminary injunction. In the first, Scruggs

complains that Miller, SinClair and Creasy have been threatening and harassing him because he
threw water on Sternberg in November 2015. (DE 3.) He requests an immediate no contact order
requiring the prison to have those officers work in another section of the prison. (DE 3 at 2.)
“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not
be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997). To obtain preliminary injunctive relief, the moving party
must demonstrate that he or she has a reasonable likelihood of success on the merits, lacks an
adequate remedy at law, and will suffer irreparable harm if immediate relief is not granted. Girl
Scouts of Manitou Council, Inc. v. Girl Scouts of U.S., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008).

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Finally, the court must consider the interest of the public and non-parties in denying or granting
the injunction. Ty Inc. v. The Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001).
Scruggs has not met these requirements. To start, he has not shown a likelihood of
success on the merits. While his motion asks for a preliminary injunction based on various
alleged threats and harassment, this case is about money damages for three past incidents of
alleged uses of excessive force. And, while he has made those allegations, he has not supported
them with anything but his own statements. While his allegations are enough to get beyond
screening, they are not enough to show a reasonable likelihood of success on the merits. Scruggs
has also not established that he does not have an adequate remedy at law. Tellingly, in his
complaint, Scruggs seeks only money damages; he does not even seek a permanent injunction in
this case. (See DE 2 at 5.) Thus, even if he were successful in this case, he would receive only
money damages for being wrongfully pepper sprayed.
Additionally, when a prisoner seeks injunctive relief against correctional officials the last
factor, public interest, takes on particular importance. Under the Prison Litigation Reform Act,
injunctive relief must be “narrowly drawn, extend no further than necessary to remedy the
constitutional violation, and must use the least intrusive means to correct the violation of the
federal right.” Westefer v. Neal, 682 F.3d 679, 681 (7th Cir. 2012). As the U.S. Supreme Court
has observed, “the problems of prisons in America are complex and intractable,” and “courts are
particularly ill equipped to deal with these problems[.]” Shaw v. Murphy, 532 U.S. 223, 229
(2001) (internal quote marks and citation omitted). Accordingly, courts must afford prison
officials “wide-ranging deference” in the day-to-day operations of a correctional facility. Bell v.
Wolfish, 441 U.S. 520, 547 (1979).

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Here, public policy weighs against granting an injunction. What Scruggs wants - an order
that prison staff stay away and not harass him in various ways - would require constant
monitoring by the court and involve the court in every instance of discipline, denial of privileges
or assignment of officers. Getting involved in this matter is the type of day-to-day operations the
court tries to avoid. Such decisions are better left to the correctional facility’s deference. Thus,
the court will deny this motion at this juncture. Surely, if Scruggs files an amended complaint,
the decision of whether or not to grant injunctive relief can be revisited. For now, the
Superintendent will be provided with a copy of this order so that he is aware of these issues and
this litigation so he can best decide how to proceed.
Scruggs’ second motion for preliminary injunction requests an order to preserve:
1. Video from WCU-B8-203 on 11-15-15, 11-21-15 and 11-22-15 from 6 a.m. through 6
p.m., and any cell extraction video from 11-22-15;
2. Video from WCU-B8-203 on 12-1-15 from 6 a.m. through 6 p.m., and any cell
extraction video from 12-1-15;
3. Video from WCU-A4-201 on 1-2-16 and 1-3-16 from 6 a.m. through 6 p.m., and any
cell extraction video from 1-3-16; and
4. Video from WCU-B1-107 on 1-4-16 to 1-12-16, all 24 hours a day;
so that he can use the video as evidence in this case. Although labeled as a preliminary
injunction, this request is more appropriately understood as a motion to preserve evidence, which
is unnecessary. Previously, he has sought to preserve the same video evidence and has been told
the same thing. (See Scruggs v. SinClair, Cause No. 3:16-CV-39, DE 10.)
Again, a party has a duty to preserve evidence when he knows, or should have known,
that litigation is imminent. Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir.
2008). The duty to preserve evidence encompasses any evidence that the non-preserving party
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knew or reasonably could foresee would be relevant to the action. Larson v. Bank One Corp.,
2005 WL 4652509, *10-11 (N.D. Ill. August 18, 2005); Danis v. USN Communications, Inc.,
2000 WL 1694325, *32 (N.D. Ill. Oct. 20, 2000). This duty attaches when the defendant is put
on notice of impending litigation. Motel 6, 534 F.3d at 681 (explaining that Motel 6 was on
notices of the claim when it received the plaintiff’s demand letter). Because the defendants have
not yet been served in this case, the court will provide the prison Superintendent with a copy of
this order to trigger the duty to preserve evidence.
For these reasons, the court:
(1) DENIES the motions for a preliminary injunction (DE 3, 4);
(2) DIRECTS the clerk to send a copy of Scruggs’ motions (DE 3, 4) along with a copy
of this order to the Superintendent of the Westville Correctional Facility;
(3) GRANTS the plaintiff leave to proceed on a claim against Stg. Miller, Stg. SinClair
and Lt. Creasy in their individual capacities for monetary damages for using excessive force
against him on two occasions on November 23, 2015 and one occasion on an unspecified date;
(4) DISMISSES all other claims;
(5) DISMISSES Nurse Cook and C.O. Sternberg;
(6) DIRECTS the clerk to transmit the summons and USM-285 for Stg. Miller, Stg.
SinClair and Lt. Creasy to the United States Marshals Service along with a copy of the complaint
(DE 2) and this order;
(7) DIRECTS the U.S. Marshals Service to effect service of process on Stg. Miller, Stg.
SinClair and Lt. Creasy pursuant to 28 U.S.C. § 1915(d); and
(8) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Stg. Miller, Stg. SinClair and Lt.

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Creasy respond, as provided for in the Federal Rules of Civil Procedure and N.D. Ind. L.R.
10-1(b), only to the claims for which the plaintiff has been granted leave to proceed in this
screening order.
SO ORDERED.
ENTERED: February 8, 2016
/s/ JON E. DEGUILIO
Judge
United States District Court

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