Dismukes v. Sanchez et al

Filing 17

OPINION AND ORDER: The Court (1) GRANTS Terrell Dismukes leave to proceed against Officers Simon Sanchez, Shalynn Jones, Alexander Baker, Brent Rose, Greg Moore, and Paul Johnson, in their individual capacities for compensatory and punitive damages for allegedly assaulting him on 12/3/2020, in violation of the Fourteenth Amendment; (2) GRANTS Terrell Dismukes leave to proceed against Officers Chad Williams, Demond Johnson, Fred Fowler, Aaron Lello, Andres Mercado, Marquise Myers, and Noah Stam per in their individual capacities for compensatory and punitive damages for allegedly assaulting him on 12/5/2020, in violation of the Fourteenth Amendment; (3) DISMISSES all other claims; (4) DISMISSES Dr. Hall, NP Stephanie, Warden Lawson, and Sg t. R. Olmstead; (5) DIRECTS the clerk to request Waiver of Service from (and if necessary, the United States Marshals Service to use any lawful means to locate and serve process on) Officers Simon Sanchez, Shalynn Jones, Alexander Baker, Brent Rose, Greg Moore, PaulJohnson, Chad Williams, Demond Johnson, Fred Fowler, Aaron Lello, Andres Mercado, Marquise Myers, and Noah Stamper at St. Joseph County Jail, with a copy of this order and the complaint (ECF 1, ECF 1-1, ECF 1-6), under 28 U.S.C. & #167; 1915(d); (6) ORDERS St. Joseph County Jail to provide the full name, date of birth, and last known home address of any defendant who does not waive service if it has such information; and (7) ORDERS, under 42 U.S.C. § 1997e(g)(2), Officer s Simon Sanchez, Shalynn Jones, Alexander Baker, Brent Rose, Greg Moore, Paul Johnson, Chad Williams, Demond Johnson, Fred Fowler, Aaron Lello, Andres Mercado, Marquise Myers, and Noah Stamper to 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. Signed by Judge Damon R Leichty on 11/18/2021. (Copy mailed as directed in Order)(shk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TERRELL DISMUKES,
Plaintiff,
v.

CAUSE NO. 3:21-CV-51 DRL-JEM

SIMON SANCHEZ et al.,
Defendants.
OPINION AND ORDER
Terrell Dismukes, a prisoner without a lawyer, filed a complaint against seventeen
defendants. ECF 1. “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). Under 28 U.S.C. § 1915A, the court still 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 an
immune defendant.
Mr. Dismukes alleges that since July 2, 2020, he has requested medical treatment
for his hernia, but his requests have been denied by the prison’s medical staff. ECF 1 at 2.
He says his hernia is very painful and the hernia belt and medication he was prescribed
have not alleviated his pain. Id. Mr. Dismukes claims his hernia needs to be removed
because he is in pain every day. Id. He asserts Dr. Hall and NP Stephanie have ignored
his medical condition and refused to arrange for him to have his hernia removed. Id.

Mr. Dismukes alleges that, on December 3, 2020, at about 7:00 a.m., he was again
denied treatment for his hernia. ECF 1 at 2; 1-6 at 1. He reported to Dr. Hall that he was
in pain, and his hernia caused his penis and testicles to hurt. ECF 1 at 2. Mr. Dismukes
asked Dr. Hall if he could go to the hospital, but Dr. Hall denied his request. Id. He asserts
that, despite being tormented with pain, Dr. Hall told him there was nothing he could do
to help him and there was no plan to remove his hernia. Id. His appointment with Dr.
Hall lasted only ten minutes. Id.
Because Mr. Dismukes is a pretrial detainee, his rights arise under the Fourteenth
Amendment. Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018) (citing Kingsley v.
Hendrickson, 576 U.S. 389 (2015)). “[M]edical-care claims brought by pretrial detainees
under the Fourteenth Amendment are subject only to the objective unreasonableness
inquiry identified in Kingsley. Id. The law assesses a due process challenge to a pretrial
detainee’s medical care in two steps. Id. at 353. The first step, which focuses on the
intentional conduct of the defendants, “asks whether the medical defendants acted
purposefully, knowingly, or perhaps even recklessly when they considered the
consequences of their handling of [the plaintiff’s] case.” Id. A showing of negligence or
even gross negligence does not suffice. Id. The second step asks whether the challenged
conduct was objectively reasonable. Id. at 354. The objective reasonableness standard
requires more than medical malpractice and “the state-of-mind-requirement for
constitutional cases remains higher.” Id. at 353.
Here, Mr. Dismukes has not plausibly stated a claim against Dr. Hall or NP
Stephanie. The complaint indicates that, on December 3, 2020, Mr. Dismukes had a
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medical appointment with Dr. Hall, and they discussed his hernia. Though Mr. Dismukes
was unhappy with Dr. Hall’s treatment because he would not agree to send him to the
hospital or have his hernia removed, he has not alleged any facts that show Dr. Hall’s
treatment was objectively unreasonable. Furthermore, to the extent he complains that NP
Stephanie generally did not provide him with treatment for his hernia, he has not alleged
any specific facts to support his claim. Therefore, he may not proceed against Dr. Hall or
NP Stephanie.
Following his December 3, 2020, appointment with Dr. Hall, Mr. Dismukes
returned to his pod and talked with Officer Sanchez Simon about getting treatment for
his hernia, but Officer Simon told him he had no control over the medical staff’s decisions.
ECF 1-6 at 1. He asked Officer Simon if he could speak with his supervisor and the
medical staff again, but Officer Simon would not allow him to do so. Id. Mr. Dismukes
states that Officer Simon, who had been treating him disrespectfully, grabbed his arm. Id.
He asserts he pulled away from Officer Simon, at which point, he was assaulted by
Officers Sanchez, Shalynn Jones, Alexander Baker, Brent Rose, Greg Moore, and Paul
Johnson, simply because he had asked to speak to a supervisor about his medical
condition. Id. Mr. Dismukes could not stop the defendants from assaulting him and one
of the officers allegedly sexually assaulted him by pulling down his pants when he was
face down in restraints. Id.
To establish an excessive force claim under the Fourteenth Amendment, the
plaintiff must show that “the force purposefully or knowingly used against him was
objectively unreasonable.” Kingsley, 576 U.S. at 396-97. In determining whether force was
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objectively unreasonable, courts consider such factors as the relationship between the
need for force and the amount of force that was used, the extent of any injuries the
plaintiff suffered, the severity of the security problem, the threat the officer reasonably
perceived, and whether the plaintiff was actively resisting. Id. at 397. Here, additional fact
finding may demonstrate that the force used against Mr. Dismukes was objectively
reasonable but giving Mr. Dismukes the inferences to which he is entitled at this stage of
the case, he has stated a claim of excessive force against Officers Simon Sanchez, Shalynn
Jones, Alexander Baker, Brent Rose, Greg Moore, and Paul Johnson, for allegedly
assaulting him on December 3, 2020.
Mr. Dismukes next alleges that, on December 4, 2020, he asked every prison staff
member who passed by his cell for help and even placed a sign in the window of his cell
door about the December 3, 2020, incident. ECF 1-1 at 2. He was ignored by the prison’s
staff until December 5, 2020, when Officer Chad Williams came to his cell and talked with
him. Id. However, Mr. Dismukes claims Williams had been lying to him all day, and Mr.
Dismukes told Williams he would push his hernia out if he did not get to talk to a
supervisor. Id. Sgt. Demond Johnson was called to Mr. Dismukes’s cell and ordered Mr.
Dismukes to cuff up so that he could be placed on suicide watch. Id. However, because
he refused to cuff up, he was sprayed with OC spray, tased, and assaulted by Officers
Williams, Johnson, Fred Fowler, Aaron Lello, Andres Mercado, Marquise Myers, and
Noah Stamper. Id. Mr. Dismukes was then placed on suicide watch from December 6,
2020, to December 7, 2020. Id. While additional fact finding may show that the force used
against Mr. Dismukes on December 5, 2020 was objectively reasonable, he has stated a
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claim against Officers Chad Williams, Demond Johnson, Fred Fowler, Aaron Lello,
Andres Mercado, Marquise Myers, and Noah Stamper. Id.
Mr. Dismukes has also sued Warden Lawson alleging that Warden Lawson did let
him file charges or report the alleged sexual assault. ECF 1-1 at 2. However, Mr. Dismukes
has offered no specific facts about his efforts to file charges. Furthermore, a § 1983 suit
requires “personal involvement in the alleged constitutional deprivation to support a
viable claim.” Palmer v. Marion Cty., 327 F.3d 588, 594 (7th Cir. 2003). There is no general
respondeat superior liability under 42 U.S.C. § 1983. Burks Raemisch, 555 F.3d 592, 594 (7th
Cir. 2009). Because Warden Lawson was not personally involved in the alleged assaults
on December 3, 2020, and December 5, 2020, he cannot be held liable simply because he
oversees the operation of the prison or supervises prison staff. Therefore, Mr. Dismukes
cannot proceed against Warden Lawson.
Furthermore, to the extent Mr. Dismukes may be asserting that Sgt. Olmstead
found him guilty of two allegedly false disciplinary charges, this does not state an
independent cause of action. ECF 1-1 at 2; ECF 1-6 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). Because Mr. Dismukes’s complaint does not plausibly allege that any of his due
process rights were violated at his disciplinary hearings, he may not proceed against Sgt.
Olmstead.
For these reasons, the court:
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(1) GRANTS Terrell Dismukes leave to proceed against Officers Simon Sanchez,
Shalynn Jones, Alexander Baker, Brent Rose, Greg Moore, and Paul Johnson, in their
individual capacities for compensatory and punitive damages for allegedly assaulting
him on December 3, 2020, in violation of the Fourteenth Amendment;
(2) GRANTS Terrell Dismukes leave to proceed against Officers Chad Williams,
Demond Johnson, Fred Fowler, Aaron Lello, Andres Mercado, Marquise Myers, and
Noah Stamper in their individual capacities for compensatory and punitive damages for
allegedly assaulting him on December 5, 2020, in violation of the Fourteenth Amendment;
(3) DISMISSES all other claims;
(4) DISMISSES Dr. Hall, NP Stephanie, Warden Lawson, and Sgt. R. Olmstead;
(5) DIRECTS the clerk to request Waiver of Service from (and if necessary, the
United States Marshals Service to use any lawful means to locate and serve process on)
Officers Simon Sanchez, Shalynn Jones, Alexander Baker, Brent Rose, Greg Moore, Paul
Johnson, Chad Williams, Demond Johnson, Fred Fowler, Aaron Lello, Andres Mercado,
Marquise Myers, and Noah Stamper at St. Joseph County Jail, with a copy of this order
and the complaint (ECF 1, ECF 1-1, ECF 1-6), under 28 U.S.C. § 1915(d);
(6) ORDERS St. Joseph County Jail to provide the full name, date of birth, and last
known home address of any defendant who does not waive service if it has such
information; and
(7) ORDERS, under 42 U.S.C. § 1997e(g)(2), Officers Simon Sanchez, Shalynn Jones,
Alexander Baker, Brent Rose, Greg Moore, Paul Johnson, Chad Williams, Demond
Johnson, Fred Fowler, Aaron Lello, Andres Mercado, Marquise Myers, and Noah
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Stamper to 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.
November 18, 2021

s/ Damon R. Leichty
Judge, United States District Court

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