Huey v. Emmendorfer et al

Filing 16

OPINION AND ORDER: CONSTRUES the motion 15 as a Rule 15(a)(1)(B) notice; DIRECTS the Clerk to edit the docket entry 15 to indicate that it is a notice; DIRECTS the Clerk to separately docket the amended complaint 15 -1; GRANTS Anthony Paul Huey leave to proceed against Deputies Emmendorfer and Carrico in their individual capacities for using excessive force in violation of the Fourteenth Amendment after he left the visitation room at the St Joseph County Jail on October 2, 2016; GRANTS Pl a leave to proceed against Deputies Emmendorfer and Carrico in their individual capacities for denying medical treatment in violation of the Fourteenth Amendment after he left the visitation room at the St Joseph County Jail on October 2, 2016; G RANTS Pla leave to proceed against Deputy Kitchen in his individual capacity for failing to intervene to stop excessive force from being used against him in violation of the Fourteenth Amendment at the St Joseph County Jail on October 2, 2016; DISM ISSES all other claims; DISMISSES Sgt. Fisher; DIRECTS the Clerk and the USMS Service to issue and serve process on Deputies Emmendorfer, Carrico, and Kitchen at the St Joseph County Jail with a copy of this order and the amended complaint 15 -1, p ursuant to 28:1915(d); and (10) ORDERS, pursuant to 42:1997e(g)(2), that Deputies Emendorfer, Carrico, and Kitchen respond, as provided for in the Fed.R.Civ.P. 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. Signed by Judge Philip P Simon on 3/19/2018. (Copy mailed to defendant(s))(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ANTHONY PAUL HUEY,
Plaintiff,
v.
DEPUTY EMMENDORFER, et al.,
Defendants.

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CAUSE NO. 3:17-CV-655-PPS-MGG

OPINION AND ORDER
Anthony Paul Huey, a prisoner without a lawyer, filed a motion asking to amend
his complaint. Pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), he may amend
“once as a matter of course” without permission from the court within 21 days after a
responsive pleading or motion to dismiss is filed. Because neither a responsive pleading
nor a motion to dismiss have been filed, the motion to amend will be construed as a
notice and the Clerk will be directed to docket the amended complaint which identifies
a previously unknown defendant. The amended complaint is a copy of the original
complaint and in each location where the actions of the Unknown Defendant were
described, he has written in the name: Deputy Carrico.
This action involves an incident that occurred while Huey was a pre-trial
detainee at St. Joseph County Jail. Huey alleges that he was beaten and denied medical
treatment on October 2, 2016, while he was a pre-trial detainee in the Saint Joseph
County Jail. “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, I
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.
Huey alleges things began when Deputy Emmendorfer pushed and shoved him
while escorting him to the visitation room at the jail. However, “[n]ot every push or
shove, even if it may later seem unnecessary in the peace of a judge’s chambers,”
violates the constitution. Graham v. Conner, 490 U.S. at 396, quoting Johnson v. Glick, 481
F.2d 1028, 1033 (2d Cir.), cert. denied 414 U.S. 1033 (1973). Based on the complaint, it does
not appear that it was necessary for Deputy Emmendorfer to have pushed and shoved
Huey, but Huey was not injured and “enjoyed a visit [with family] despite the
unnecessary roughness exhibited toward him by Defendant Deputy Emmendorfer.”
ECF 1 at 4. Therefore these allegations do not state a claim.
But what he alleges happened when he left the visitation room does. Huey says
he ask Deputy Kitchen to take him back to his cell because Deputy Emmendorfer had
been “pushing and shoving” him on the way to the visitation room. ECF 1 at 6. In
response he says Deputy Emmendorfer “lifted [him] off the ground, slammed his head
into the wall” and threw him to the floor while he “was handcuffed and shackled at the
waist and entirely defenseless . . ..” ECF 1 at 7. Then Deputy Emmendorfer and Deputy
Carrico beat him with closed fists.
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Guards may not use excessive force against pre-trial detainees. Kingsley v.
Hendrickson, 576 U.S. __, __; 135 S.Ct. 2466, 2473 (2015) (holding that “a pretrial detainee
must show only that the force purposely or knowingly used against him was objectively
unreasonable.”). These allegations state a claim against Deputy Emmendorfer and
Deputy Carrico.
Huey alleges Deputy Kitchen did not intervene to stop the beating delivered by
the other two guards. 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). Based on the
duration of the alleged events, it is plausible to infer Deputy Kitchen had a realistic
opportunity to have helped. Therefore this allegation also states a claim.
Next, Huey alleges Deputy Emmendorfer and the Deputy Carrico dragged him
to his cell and refused his request for medical treatment. Under the Eighth Amendment,
inmates are entitled to adequate medical care. Estelle v. Gamble, 429 U.S. 97, 104 (1976).
“Although the Eighth Amendment applies only to convicted persons, pretrial detainees
. . . are entitled to the same basic protections under the Fourteenth Amendment’s due
process clause. Accordingly, [courts] apply the same legal standards to deliberate
indifference claims brought under either the Eighth or Fourteenth Amendment.” Minix
v. Canarecci, 597 F.3d 824, 831 (7th Cir. 2010). See also Phillips v. Sheriff of Cook Cty., 828
F.3d 541, 554 n. 31 (7th Cir. 2016) (clarifying that Kingsley v. Hendrickson, 576 U.S. __, __;
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135 S.Ct. 2466 (2015) did not change the applicability of the Eighth Amendment
standard to pre-trial detainee deliberate indifference claims). To establish liability, a
prisoner must satisfy both an objective and subjecting component by showing: (1) his
medical need was objectively serious; and (2) the defendant acted with deliberate
indifference to that medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). 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). On the subjective
prong, the plaintiff must establish the defendant “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). The allegations here, including that Huey suffered serious injury to
his face, skull, shoulder, and wrist, state a claim against Deputy Emmendorfer and
Deputy Carrico.
Huey alleges Deputy Emmendorfer and Deputy Carrico falsely charged him
with “aggressive movements toward staff members.” ECF 1-1 at 1. “[P]risoners are
entitled to be free from arbitrary actions of prison officials, but . . . even assuming
fraudulent conduct on the part of prison officials, the protection from such arbitrary
action is found in the procedures mandated by due process.” McPherson v. McBride, 188
F.3d 784, 787 (7th Cir. 1999). See also Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1983)
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(“[A]n allegation that a prison guard planted false evidence which implicates an inmate
in a disciplinary infraction fails to state a claim for which relief can be granted where
the procedural due process protections as required in Wolff v. McDonnell are
provided.”). Huey was found guilty by Sgt. Fisher. Though he alleges Sgt. Fisher did so
in retaliation for protesting his innocence during the disciplinary hearing, he has not
plausibly alleged he was denied due process or that Sgt. Fisher’s decision was based on
other than the evidence presented against Huey.
Deputy Emmendorfer and Deputy Kitchen have already appeared by counsel.
My prior order required they respond to the original complaint. That is no longer
necessary. Now they need to respond to the amended complaint. Though they have
already waived service, a new notice of waiver will be issued so the record is clear as to
the deadline for responding to the amended complaint and so their deadline will be the
same as for Deputy Carrico.
For these reasons, the Court:
(1) CONSTRUES the motion (ECF 15) as a Rule 15(a)(1)(B) notice;
(2) DIRECTS the Clerk to edit the docket entry (ECF 15) to indicate that it is a
notice;
(3) DIRECTS the Clerk to separately docket the amended complaint (ECF 15-1);
(4) GRANTS Anthony Paul Huey leave to proceed against Deputy Emmendorfer
and Deputy Carrico in their individual capacities for using excessive force in violation

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of the Fourteenth Amendment after he left the visitation room at the Saint Joseph
County Jail on October 2, 2016;
(5) GRANTS Anthony Paul Huey leave to proceed against Deputy Emmendorfer
and Deputy Carrico in their individual capacities for denying medical treatment in
violation of the Fourteenth Amendment after he left the visitation room at the Saint
Joseph County Jail on October 2, 2016;
(6) GRANTS Anthony Paul Huey leave to proceed against Deputy Kitchen in his
individual capacity for failing to intervene to stop excessive force from being used
against him in violation of the Fourteenth Amendment at the Saint Joseph County Jail
on October 2, 2016;
(7) DISMISSES all other claims;
(8) DISMISSES Sgt. Fisher;
(9) DIRECTS the Clerk and the United States Marshals Service to issue and serve
process on Deputy Emmendorfer, Deputy Carrico, and Deputy Kitchen at the Saint
Joseph County Jail with a copy of this order and the amended complaint (ECF 15-1),
pursuant to 28 U.S.C. § 1915(d); and
(10) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Deputy Emmendorfer,
Deputy Carrico, and Deputy Kitchen 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.

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SO ORDERED on March 19, 2018.
/s Philip P. Simon
JUDGE
UNITED STATES DISTRICT COURT

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