Ellis v. Pryor et al

Filing 10

OPINION AND ORDER re 9 the court GRANTS the plaintiff leave to proceed against Sergeant Pryor in his individual capacity for monetary damages for using excessive force against him on June 10, 2016; GRANTS the plaintiff leave to proceed against Ms. Flakes in her individual capacity for monetary damages for failing to intervene in Sergeant Pryor's use of excessive force on June 10, 2016; DISMISSES any and all other claims contained in the complaint: DIRECT the clerk and the United States Ma rshals Service to issue and serve process on Sergeant Pryor and Ms. Flakes with a copy of this order and the amended complaint and: ORDERS that Sergeant Pryor and Ms. Flakes respond only to the claim for which the pro se plaintiff has been granted leave to proceed in this screening order. Signed by Judge Rudy Lozano on 2/7/2017. (lpw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DEMAJIO JEROME ELLIS,
Plaintiff,
vs.
SERGEANT PRYOR, et al.,
Defendants.

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CAUSE NO. 3:16-CV-620 RL

OPINION AND ORDER
Demajio Jerome Ellis, a pro se prisoner, filed an amended
complaint under 42 U.S.C. § 1983. (DE 9.) The court must review the
complaint and dismiss it if the action is frivolous or malicious,
fails to state a claim for relief, or seeks monetary relief against
a defendant who is immune from such relief. 28 U.S.C. § 1915A. To
survive dismissal, the 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. Thus, the 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). Nevertheless,
the court must bear in mind that “a pro se complaint, however
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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).
Ellis

is

inmate

at

the

Westville

Correctional

Facility

(“Westville”). He complains about events that occurred there on
June 10, 2016. He states that he placed both of his hands out of
his cuffport. Sergeant Pryor came to see why Ellis had his hands
outside of his cuffport. Because Pryor and Ellis had problems in
the

past,

the

conversation

quickly

turned

into

an

argument.

Angered, Sergeant Pryor instructed Ms. Flakes to get a “strong”
version of pepper spray. Sergeant Pryor sprayed into Ellis’s cell
for 4-6 seconds simply to cause harm. Then, without warning or
reason, Sergeant Pryor deployed his taser on Ellis. Ellis alleges
that Sergeant Pryor used excessive force and Ms. Flakes allowed him
to do so.
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)
(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, though the amended complaint is light on detail, giving

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Ellis the inferences to which he is entitled at this stage, he
alleges

a

plausible

claim

that

Sergeant

Pryor

used

force

maliciously and sadistically to cause him harm. Although further
factual development may show that Sergeant Pryor’s actions were
reasonable under the circumstances, Ellis has alleged enough to
proceed on this claim.
Next, Ellis brings suit against Ms. Flakes for failing to
intervene in Sergeant Pryor’s use of excessive force. State actors
“who have a realistic opportunity to step forward and prevent a
fellow [state actor] from violating a plaintiff's right through the
use of excessive force but fail to do so” may be held liable.
Miller v. Smith, 220 F.3d 491, 495 (7th Cir.2000) (citing Yang v.
Hardin, 37 F.3d 282, 285 (7th Cir.1994).

This is what has become

known as a “failure to intervene” basis for a constitutional
violation under the Eighth Amendment, a principle which this
circuit has long recognized. Fillmore v. Page, 358 F.3d 496 506
(7th Cir. 2004); Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.
1982).
Giving Ellis the inferences to which he is entitled at this
stage, he alleges a plausible claim that Ms. Flakes knew Sergeant
Pryor was engaging in excessive force, had an opportunity to
prevent him from using more force than was necessary under the
circumstances, and nevertheless failed to intervene. The amended
complaint can be read to allege that because they were acting in

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concert, Ms. Flakes allowed Sergeant Pryor to use excessive force
on Ellis. Although further factual development may show that Ms.
Flakes acted reasonably under the circumstances, Ellis has alleged
enough to proceed on this claim.
For these reasons, the court:
(1) GRANTS the plaintiff leave to proceed against Sergeant
Pryor in his individual capacity for monetary damages for using
excessive force against him on June 10, 2016;
(2) GRANTS the plaintiff leave to proceed against Ms. Flakes
in her individual capacity for monetary damages for failing to
intervene in Sergeant Pryor’s use of excessive force on June 10,
2016;
(3) DISMISSES any and all other claims contained in the
complaint;
(4) DIRECTS the clerk and the United States Marshals Service
to issue and serve process on Sergeant Pryor and Ms. Flakes with a
copy of this order and the amended complaint as required by 28
U.S.C. § 1915(d); and
(5) ORDERS that Sergeant Pryor and Ms. Flakes 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 pro se plaintiff has been
granted leave to proceed in this screening order.
DATED: February 7, 2017

/s/RUDY LOZANO, Judge
United States District Court

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