HENSON v. BUSS et al

Filing 192

ENTRY granting Defendants' 172 Motion for Summary Judgment (see Entry). Judgment consistent with this Entry shall now issue. Copy to Plaintiff via US Mail. Signed by Judge William T. Lawrence on 1/23/2015. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TIMOTHY G. HENSON,
Plaintiff,
vs.
BOYD LUNSFORD, et al.,
Defendants.

)
)
)
)
)
)
)
)

Case No. 1:10-cv-1009-WTL-DML

Entry Discussing Motion for Summary Judgment
Plaintiff Timothy Henson, a former inmate of the Pendleton Correctional Facility
(“Pendleton”), brings this action pursuant to 42 U.S.C. § 1983, alleging that the defendants, officer
employed by the Indiana Department of Correction (“IDOC”) at Pendleton, violated his
constitutional rights with regard to treatment he received after he was found to have been involved
in an altercation with another offender.
I. Background
On August 2, 2008, defendant Jacox observed Henson interacting physically with another
offender and concluded that the two were fighting. Both Henson and the other offender were
transported to the Captain’s office for questioning with regard to this incident. Henson now sues,
alleging in this Third Amended Complaint, the following claims with regard to the incident: (1)
defendant Lunsford, who transported Henson to the Captain’s office, used excessive force in
violation of his Eighth Amendment rights when attempting to subdue him during an altercation;
(2) defendants Waterman, Beautry, and Ruttan failed to intervene and/or protect Henson from
Lunsford’s alleged use of force; (3) defendant Jacox retaliated against Henson in violation of his
First Amendment rights when he filed a conduct report against Henson related to the incident; (4)
defendant Nickles retaliated against Henson by refusing to process his grievances; and (5)

defendant Rains retaliated against Henson by failing to report or discipline the other defendants for
their actions. The defendants move for summary judgment. Henson has not responded.
II. Summary Judgment Standard
Summary judgment is appropriate if “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
A dispute about a material fact is genuine only “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986). If no reasonable jury could find for the non-moving party, then
there is no “genuine” dispute. Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d
686 (2007).
As noted, despite multiple extensions of time, Henson has not filed a timely response to the
motion for summary judgment. The consequence of his failure to do so is that he has conceded the
defendants’ version of the facts. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.2003) (“[F]ailure to
respond by the nonmovant as mandated by the local rules results in an admission.”); Waldridge v.
American Hoechst Corp., 24 F.3d 918, 921–22 (7th Cir.1994). This does not alter the standard for
assessing a Rule 56(a) motion, but does “reduc[e] the pool” from which the facts and inferences
relative to such a motion may be drawn. Smith v. Severn, 129 F.3d 419, 426 (7th Cir.1997).
III. Undisputed Facts
On the evening of August 2, 2008, defendant Jacox, a Correctional Officer at Pendleton,
observed Henson engaging in direct and aggressive physical contact with another offender, Dejuan
Emerson (“Emerson”). Offenders are not permitted to engage in aggressive and direct physical
contact. Based on his observation, Jacox believed that Henson and Emerson were fighting. Jacox

2

therefore called in a Code “10-10” or a “fight” over his radio and then ordered all offenders to their
cells so that they could be secured.
Upon returning to his cell, Henson was questioned and visually examined by two
correctional officers to determine if he had sustained any injuries during the incident. Henson and
Emerson claimed that they were not fighting but were simply engaging in “horse play” or rough
housing, wrestling, and shadow boxing. At that point it was determined that both Henson and
Emerson would be escorted to the Captain’s office in the Duty Office Building for questioning
regarding the incident. Henson and Emerson were then handcuffed behind their backs and escorted
to the Duty Office Building by defendants Lunsford and Waterman. During the walk to the Duty
Office Building Lunsford believed that Henson began to physically resist him. In response,
Lunsford gave him verbal warnings and commands to stop resisting. Henson did not follow
Lunsford’s commands and a struggle ensued. During the struggle Lunsford used physical force to
subdue Henson and regain control of the situation by placing Henson down on the grass on his
stomach with his face to the side and placed one knee on the ground and one on Henson’s back.
During his struggle with Henson, Lunsford called in a Code over his radio requesting assistance.
At the time of the altercation, Henson outweighed Lunsford by approximately fifty pounds.
When the altercation between Henson and Lunsford began, Waterman helped Emerson
down onto his knees and then onto his stomach in the grass approximately 15 to 20 feet away for
his own safety. Waterman then assisted Lunsford in subduing Henson. Waterman did not believe
that Lunsford’s use of force was excessive.
The altercation between Lunsford and Henson transpired very quickly and only lasted for
approximately 2 minutes. During the altercation, both defendants Beaudry and Ruttan were inside
the Duty Office Building more than 15 feet away and could not see Lunsford or Henson from their
3

location. Upon arriving at the Duty Office Building, Henson was placed in a dry cell. Beaudry and
Ruttan interviewed Henson regarding the incident and Henson was taken to the medical infirmary
to be evaluated and to have his injuries photographed. Henson’s complaints consisted of
discomfort and swelling to the left side of his face and head, and a red and bruised left wrist.
Henson was seen by medical and released to Waterman who escorted him back to the dry cell in
the Duty Office Building.
Henson was later returned to his cell. Jacox came to check on Henson and asked to view his
injuries. At that time, Henson asked Jacox to contact the superintendent, Brett Mize, and the
internal affairs department regarding Lunsford’s use of physical force during transport to the Duty
Office Building. Henson threatened that if Jacox did not contact them that he would provide
information to internal affairs and the Superintendent regarding his alleged drug use on duty.
Henson then informed Jacox that he had already provided the information and would provide
additional information if he did not honor his request.
After the incident, Henson was placed on “red tag” status pending further investigation into
the events of that day. Henson’s red tag status resulted in his temporary removal from general
population activities and housekeeping detail pending the outcome of an investigation.
As a result of the fight between offenders Henson and Emerson, Jacox issued a report of
conduct to Henson for committing battery upon another person without a weapon or inflicting
serious injury. Emerson was also issued a similar report of conduct. Jacox prepared and filed the
conduct report while Henson and Emerson were in the Duty Office Building. It was Jacox’s job to
issue the conduct report because he was the officer who observed the institutional infraction – the
aggressive and direct physical contact between Henson and Emerson. That same day, a
segregation confinement report was issued to Henson to move him to administrative segregation.
4

A disciplinary hearing was held regarding Henson’s actions. He was found guilty and sentenced to
180 days in disciplinary segregation.
On August 12, 2008, Henson filed a Level I grievance with Nickles, a Grievance Officer at
Pendleton, against Jacox, Lunsford, Waterman, Beaudry, and Ruttan regarding the events that took
place on August 2, 2008. On August 17, 2008, Henson mailed a letter to Internal Affairs requesting
an investigation into the events of August 2, 2008.
On August 18, 2008, Nickles emailed a Notice to the G-Cell Counselor in regards to
Henson’s grievance and complaints regarding the events of August 2, 2008. That same day,
Henson was notified that his complaint was under investigation. On September 18, 2008, Nickles
interviewed Henson to discuss the Level I Grievance and his findings. Nickles then informed
Henson that he had found in favor of the officers involved. On September 18, 2008, IDOC issued a
response to Henson’s grievance and found in favor of the officers. On September 19, 2008,
Henson received an “Offender Grievance Program Return of Grievance” confirming that IDOC
had found that the officers involved followed policy. On September 20, 2008, Henson filed a Level
II grievance.
On October 8, 2008, Nickles interviewed Henson to discuss the Level II grievance and his
findings. At that time, Nickles informed Henson that he had conducted an investigation along with
Correctional Major Peckham and had reviewed the surveillance footage. In response to his Level II
grievance, Henson was informed that the matter was investigated and that ultimately it was
determined that the officers followed policy. Additionally, Henson received a response to his
Level II grievance from Executive Assistant Jack Binion informing him that he had found that the
officers had followed policy. At that time, it was Henson’s understanding that he had exhausted all
administrative remedies and as such he proceeded in initiating the instant suit.
5

IV. Discussion
A. Excessive Force
Henson’s first claim is that defendant Lunsford used excessive force in violation of his
Eighth Amendment rights while transferring him to the Captain’s Office in the Duty Office
Building. Lunsford argues that his use of force was not excessive, but was both appropriate and
necessary to restore discipline and control in what he perceived to be a potentially volatile
situation. “[W]henever prison officials stand accused of using excessive physical force in violation
of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.” Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012) (internal quotation omitted). A
§ 1983 plaintiff must establish that prison officials acted wantonly; negligence or gross negligence
is not enough. Id. (citing Harper v. Albert, 400 F.3d 1052, 1065 (7th Cir. 2005)).
Here, Lunsford was transporting an offender whom he believed had just engaged in a fight
with another inmate in close proximity to the inmate he had just fought with. During transport,
Lunsford believed that Henson began to physically resist him. Lunsford perceived Henson’s
resistance as a major security threat. In response, Lunsford first attempted to regain control using
verbal commands and warnings. His attempts were unsuccessful and as such when the matter
escalated he felt it necessary to use physical force to subdue Henson and regain control before the
situation became volatile. He had not only his own safety but also that of Waterman and Emerson
to consider.
Based on the record presented to the Court, it is undisputed that Henson resisted Lunsford
and Lunsford used only that force that was necessary and appropriate to restore discipline. The

6

force was not malicious or wanton. Accordingly, Lunsford is entitled to summary judgment on
Henson’s claim of excessive force.
B. Failure to Intervene and/or Protect
Henson also claims that Defendants Beaudry, Waterman, and Ruttan failed to intervene,
stop, or prevent the use of force by Lunsford. He further alleges that this inaction constituted
deliberate indifference to his safety in violation of his Eighth Amendment rights.
1. Failure to Intervene
Defendants Waterman, Beaudry, and Ruttan argue that that they cannot be held liable for
the alleged excessive use of force by Lunsford. Waterman observed the incident between Henson
and Lunsford, but argues that he did not fail to intervene because there was no excessive force in
which to intervene. Beaudry and Ruttan argue that because they did not see the altercation, they
cannot be held liable for failing to intervene.
Officials “‘who have a realistic opportunity to step forward and prevent a fellow officer
from violating a plaintiff's right through the use of excessive force but fail to do so’ may be held
liable” as a bystander for failing to intervene. Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir.
2005) (quoting Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000)).
Here, it is undisputed that defendant Waterman observed the incident between Henson and
Lunsford, but did not believe Lunsford’s use of force was excessive. Rather, he viewed it as an
appropriate response, in accordance with IDOC policy, to Henson when he physically resisted
during transport and refused verbal commands.
Defendants Beaudry and Ruttan had neither a reason to believe that Lunsford was using
excessive force in violation of the Constitution, nor a realistic opportunity to intervene. Beaudry
and Ruttan were inside the Duty Office Building when Henson was being transported by Lunsford.
7

From their posts they could not see Henson being transported and witnessed no use of force against
Henson. Further, even if Beaudry or Ruttan had seen Officer Lunsford using force to regain control
of Henson, the events transpired so quickly that they would not have had a reasonable opportunity
to intervene from their posts. Moreover, a claim for failure to intervene is dependent on an
underlying and independent constitutional violation, in this case, excessive force under the Eighth
Amendment. See Filmore v. Page, 358 F.3d 496 (7th Cir. 2004). Because as discussed above, there
was no constitutional violation by Lunsford, defendants Waterman, Beaudry, Ruttan cannot be
held liable for failing to intervene.
2. Failure to Protect
Henson also asserts that defendants Waterman, Beaudry, and Ruttan exhibited deliberate
indifference to his needs when they failed to protect him from the alleged excessive force by
Lunsford.
To succeed on a claim that a defendant violated his Eighth Amendment rights in this
context, the plaintiff must show a serious deprivation, such as conditions that objectively “pos[e] a
substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 34 (1994). He must also prove
that prison officials acted with “deliberate indifference” to his health or safety. Id. An “official
must both be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw that inference.” Id. at 837. The plaintiff must also prove
that the defendants acted with more than mere inadvertence or negligence in order to prevail on the
theory of deliberate indifference. Billman v. Indiana Department of Correction, 56 F.3d 785 (7th
Cir. 1995).
Here, there is no evidence that defendants Waterman, Beaudry, or Ruttan knew of any
substantial risk of serious harm to Henson much less that they ignored the implications of such a
8

risk. There had been no altercations between Lunsford and Henson before this incident. Lunsford
had never threatened Henson. In these circumstances, Waterman, Beaudry, and Ruttan cannot be
held liable for failing to protect Henson from harm by Lunsford.
C. First Amendment Claims
Henson next brings multiple claims for retaliation under the First Amendment against
defendants Jacox, Nickles, and Rains. In order to establish a prima facie case of First Amendment
retaliation, a plaintiff “must ultimately show that (1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the
future; and (3) the First Amendment activity was “at least a motivating factor” in the defendants’
decision to take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (citing
Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008)).
1. Jacox
First, Henson claims that defendant Jacox retaliated against him in violation of his First
Amendment rights when Jacox filed a conduct report on August 2, 2008, related to the incident
with Emerson. Henson alleges that Jacox filed the conduct report in retaliation for Henson stating
that he would file grievances, complaints, and pursue a lawsuit and that he planned to inform
IDOC officials about Jacox’s drug use while on duty. Jacox argues that Henson cannot establish a
that he violated his First Amendment rights because Henson was not deterred in pursuing First
Amendment activity and because Henson’s First Amendment activity was not a motivation factor
in Jacox’s decision to file the conduct report.
First, it is undisputed that despite the fact that Jacox issued a conduct report against
Henson, Henson filed multiple grievances, wrote many letters complaining of actions and
inactions taken by various prison officials, and brought the instant suit all subsequent to Jacox
9

filing his conduct report. Additionally, it is undisputed that Henson’s protected activity was not a
motivating factor in Jacox’s action of filing the conduct report and that the report would have been
filed regardless of Henson’s statements. Henson participated in prohibited conduct when he
engaged in aggressive and direct physical contact with Emerson in violation of IDOC policy. It
was Jacox’s responsibility to report it. Jacox issued a conduct report to Emerson for the incident
absent similar statements of intent. Both reports were issued while the offenders were being
transferred to the Duty Office Building and prior to Henson’s statements of intent to file
grievances, complaints, and a lawsuit and to inform IDOC officials of Jacox’s alleged drug use.
Jacox is therefore entitled to summary judgment on Henson’s retaliation claim against him.
2. Nickles
Next, Henson claims that defendant Nickles retaliated against him by refusing to process
his grievances pertaining to the altercation with Lunsford. Nickles argues that he did not violate
Henson’s rights because he was not entitled to any particular outcome from his grievances. “‘The
First Amendment right to petition the government for a redress of grievances protects a person’s
right to complain to the government that the government has wronged him, but it does not require
that a government official respond to the grievance.’” Perales v. Bowlin, 644 F. Supp. 2d 1090
(N.D. Ind. 2009) (quoting Jones v. Brown, 300 F.Supp.2d 674, 679 (N.D.Ind. 2003)). “Denying a
grievance or even failure to investigate a prisoner’s complaints does not make an official liable for
damages under section 1983.” Id. (citing George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007)).
It is undisputed that Nickles did investigate and respond to Henson’s grievances. Because
Henson was not entitled under the Constitution to any particular outcome of his grievances,
Nickles cannot be held liable for the way he handled his grievances.

10

3. Rains
Finally, Henson claims that defendant Rains, an Internal Affairs Investigator at Pendleton,
retaliated against him in failing to report or discipline the other defendants for their actions on
August 2, 2008. Rains argues that his failure to report or discipline the other defendants for their
involvement in the events at issue did not amount to a First Amendment violation because his
decision not to do so did not amount to retaliation against Henson.
Rains did not conduct an official investigation into Henson’s claims nor was he required to
do so or asked to do so by the Superintendent. There is no evidence that Rains took any action or
failed to act due to a prohibited animus or because Henson sought redress of his grievances. Rains
is therefore entitled to summary judgment on Henson’s claims against him.
V. Henson’s State Law Claims
The defendants do not address Henson’s state law tort claims related to the incidents at
issue in this lawsuit. Having determined that all of Henson’s federal claims must be dismissed, the
Court turn to the question of whether supplemental jurisdiction over the remaining claims in this
case is appropriate. “When all federal claims in a suit in federal court are dismissed before trial, the
presumption is that the court will relinquish federal jurisdiction over any supplemental state-law
claims.” Al's Serv. Ctr. v. BP Prods. N. Am., Inc., 599 F.3d 720, 727 (7th Cir. 2010). Although the
presumption is rebuttable, “it should not be lightly abandoned, as it is based on a legitimate and
substantial concern with minimizing federal intrusion into areas of purely state law.” R WJ
Management Co., Inc. v. BP Prods. N. Am., Inc., 672 F.3d 476, 479 (7th Cir. 2012) (citation
omitted). The Seventh Circuit has identified the following three situations in which a court should
retain jurisdiction over supplemental claims even though all federal claims have been dismissed:
where the statute of limitations would bar the refiling of the supplemental claims in state court;
11

where substantial federal judicial resources have already been expended on the resolution of the
supplemental claims; or where it is obvious how the claims should be decided. Williams Elec.
Games, Inc. v. Garrity, 479 F.3d 904, 906–07 (7th Cir. 2007) (citation omitted).
Upon review of the relevant factors and based on the fact that neither party has addressed
those claims on summary judgment, the Court finds that the presumption in favor of remanding
state claims is not overcome here. Accordingly, Henson’s state law claims are dismissed without
prejudice.
VI. Conclusion
For the foregoing reasons, the defendants’ motion for summary judgment [dkt 172] is
granted. Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Date: 1/23/15
Distribution:

TIMOTHY G. HENSON, 128238, Indiana State Prison, One Park Row, Michigan City, IN 46360

Electronically registered counsel

12