The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
DENNIS RUSH, )
Plaintiff, )
)
vs. ) No. 19-1365
)
TERRI KENNEDY, et. al., )
Defendants )
CASE MANAGEMENT ORDER
Plaintiff, a pro se prisoner, filed a complaint, a motion to proceed in forma
pauperis (IFP), a motion for appointment of counsel, and a motion for emergency
injunctive relief. [ 1, 3, 5, 6]. The Court denied Plaintiff’s motion to proceed IFP noting
he currently had $1,175 in his Trust Fund Account. See November 15, 2019 Text Order.
Plaintiff has now paid the filing fee in full.
I. MERIT REVIEW
Before considering Plaintiff’s motion for emergency injunctive relief, the Court is
first required by 28 U.S.C. §1915A to “screen” the Plaintiff’s complaint, and through
such process to identify and dismiss any legally insufficient claim, or the entire action if
warranted. A claim is legally insufficient if it “(1) is frivolous, malicious, or fails to state
a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant
who is immune from such relief.” 28 U.S.C. §1915A.
Plaintiff alleges 19 Defendants violated his constitutional rights at Pontiac
Correctional Center including Warden Terri Kennedy; Major Leininger; Mental Health
Worker Todd Nelson; Lieutenants Biros, Torres, and Whitecotton; Nurses Sherry
Powers and Nicky; and Correctional Officers Farley, Dame, Bertville1, Henson, Henkel,
Pufall, Newkirk, McBride, John Doe #1, John Doe #2, and John Doe # 3.
On July 1, 2019, Plaintiff informed a mental health worker that he had inserted a
piece of metal “deep inside of his arm that was causing him excruciating pain.” (Comp,
p. 11). The mental health worker notified security and health care staff.
Plaintiff claims typically when an inmate is escorted to the Health Care Unit, the
inmate is handcuffed to a waist chain. However, Defendants McBride and Newkirk
told Plaintiff a new policy required them to cuff Plaintiff behind his back because of his
sexual misconduct violations. Defendants claimed the policy was instituted by Warden
Kennedy and Lieutenant Whitecotton.
Plaintiff explained he was in severe pain and forcing him to cuff with his hands
behind his back would cause greater pain. Plaintiff also said he had a “waist-chain
permit that was in the process of being renewed.” (Comp., p. 12). Finally, Plaintiff told
the officers the doctor would not be able to remove the metal from his arm with the
cuffs. Nonetheless, Defendants refused to use a waist-chain.
Plaintiff asked to speak to a supervisor and Defendant Biros responded. Biros
again stated the new policy required Plaintiff to be cuffed behind his back. Biros then
called Defendant Nurse Nicky and a three-man tactical team. Plaintiff refused to leave
unless a waist chain restraint was used to prevent further pain and injury. The nurse
1 A grievance response indicates the counselor was unable to locate any Pontiac Correctional Center
employee with the last name of Bertville or Bertfield. (Comp., p. 26).
and tactical team members interpreted Plaintiff’s statements as a refusal for further
medical treatment and left. Plaintiff says he was left to suffer in pain.
Plaintiff next claims Defendant Leininger ordered Defendants Farley and Dame
as well as unspecified tactical team members to forcefully remove Plaintiff and take him
to his cell. Plaintiff does not clarify where he was in the prison, nor how long this
occurred after his encounter with Defendant Biros.
Plaintiff does allege the officers cuffed him with his hands behind his back.
Plaintiff also says his leg shackles were then connected to a bolt in the floor and he was
forced to sit with his head and neck in his lap. Plaintiff said the position caused
extreme pain in his neck, back, arm, hands, wrist and shoulder.
An unspecified Defendant then squeezed his buttocks and whispered in his ear,
“keep your head down dick sucker.” (Comp., p. 14). Plaintiff told the officers they were
hurting him and he wanted to file a Prison Rape Elimination Act (PREA) complaint due
to the alleged sexual assault. Plaintiff claims Defendants Dame, Cullman, and Nelson
took no action even though they saw Plaintiff “was being assaulted.” (Comp., p. 14).
The officers next put Plaintiff in a “wheelchair restraint” and took him back to
his cell. (Comp., p. 14). Once at his cell, Plaintiff continued to yell he wanted to file a
PREA report. Officers instructed Plaintiff to kneel on the floor, so they could remove
his shackles. However, Plaintiff says the officers pulled the shackles through the
chuckhole with such force it caused “his left and right wrists to cut open. Blood began
pouring and squirting out of his wrists.” (Comp., p. 15). Plaintiff was jumping up and
down, screaming from the pain, and showing his wrists to Defendant Dame and the
other tactical team members. Defendants Dame and Bertville then began to taunt the
Plaintiff and told him they hoped he would die. Ultimately, the officers left Plaintiff’s
cell without providing any medical care.
Plaintiff says he also asked Defendant Officers Henson, Henkel, and Pufall for
medical attention, but they ignored his obvious injuries.
At some unspecified point, Correctional Officers McBrice, Newkirk, Maddox,
and Leslie told Plaintiff they would get him help. Defendant Nurse Sherry responded,
but Plaintiff says the nurse refused to provide any care, and instead said “let his nigga
die” and walked off. (Comp., p. 17).
Correctional Officers McBride and Newkirk then took Plaintiff to see Defendant
Nurse Nicky. Plaintiff was handcuffed behind his back, and a jump suit was wrapped
around his arm to stop the bleeding. Nurse Nicky sent Plaintiff to urgent care where he
received stiches for his injuries.
Plaintiff claims he has suffered with nightmares and flashbacks from the
incident. Plaintiff also says he has “nonstop” pain in his wrists, arms, hands and
shoulders,” but Plaintiff also says he sometimes experiences “numbness” in his hands
and wrists. (Comp., p. 18). Despite his on-going problems, officers still force Plaintiff to
wear behind-the-back handcuffs whenever he is escorted to mental health group
meetings, mental health sessions, or other areas in the prison. (Comp., p. 18). Plaintiff
further claims he has been denied pain medication, but does not clarify which medical
provider refused the medication. In addition, Plaintiff does not state whether he has
requested a medical permit for waist chain restraints. Based on his allegations, Plaintiff
is asking for one and a half million dollars in damages and transfer to a mental health
facility.
Plaintiff has attacked a copy of his July 1, 2019 grievance concerning at least a
portion of the allegations in his complaint. 2 A September 6, 2019 response points to an
Administrative Directive requiring handcuffs and shackles when moving any inmate
who is “confined pending investigation or in disciplinary segregation.” (Comp, p. 29).
There is no indication of a new policy concerning inmates with specific allegations of
sexual misconduct.
In addition, the grievance officer reviewed 13 incident reports based on the
interactions with Plaintiff on July 1, 2019. Based on this review, the grievance officer
believed Plaintiff was not handcuffed behind his back, but was instead cuffed to a wrist
restraint. The responding officers each reported Plaintiff refused to cooperate with
several commands. Officers further claimed Plaintiff injured his wrists when he began
pulling his restraints into his cell, rather than comply with orders. Consequently,
Plaintiff received a disciplinary ticket on July 1, 2019 for “Disobeying a Direct Order
Essential to Safety and Security.” (Comp., p. 29). Both Plaintiff and the Defendants
indicate there may be a video recording of at least a portion of the events on July 1,
2019. (Comp, p. 29). It is also unclear from the pleadings whether Plaintiff lost any
good time credits as a result of the disciplinary ticket.
2 The facility administration determined Plaintiff’s allegations did not involve a PREA issue and it was
instead handled as a complaint concerning staff conduct. (Comp., p. 29, 30, 31).
Plaintiff has further attached various medical records to his complaint showing
he did have a waist chain cuffing permit for a rotator cuff injury, but the documents are
not relevant to his claims since they concern a prior time period. (Comp., p. 32-38).
The attachments also indicate Plaintiff continued to complaint about officers
handcuffing him with his hands behind his back. Plaintiff does not mention any other,
specific handcuffing events in his complaint. However, Plaintiff argues in his grievance
that officers should consider which restraints to use on a case-by-case basis.
The response to Plaintiff’s September 11, 2019 grievance again noted officers
were required to handcuff all segregation inmates behind their backs when leaving
their cells. (Comp., p. 40). The grievance counselor further contacted the medical
department and noted Plaintiff “was seen by provider and was denied an alternative
cuffing permit.” (Comp., p. 40). Plaintiff appealed this grievance to the ARB on October
15, 2019, but he chose to file his complaint on November 13, 2019. Therefore, it is very
doubtful Plaintiff completed the grievance process for any claims other than the
incidents which occurred on July 1, 2019.
Whether or not he did receive a response from the ARB, Plaintiff has failed to
articulate a claim based on any policy requiring either segregation inmates or inmates
with sexual misconduct offenses to be handcuffed behind their backs while moved
throughout the facility. Prison administrators must have standard procedures in order
to safety and efficiently operate a facility housing hundreds of offenders. Nonetheless,
there is still an opportunity to consider inmates on a case-by-case basis. An inmate
may obtain a waist restraint cuffing permit if that inmate demonstrates a valid medical
basis for the permit.
Plaintiff does not allege he had a cuffing permit on July 1, 2019 or anytime after.
Furthermore, none of the named IDOC Defendants are doctors who can approve a
cuffing permit.
Nonetheless, Plaintiff has articulated claims based on specific actions on July 1,
2019. For instance, Plaintiff told officers he had inserted a piece of metal into his arm
and using the traditional handcuffs would cause greater harm and pain. Plaintiff also
claims he told the Defendants he was in excruciating pain at the time. However, the
Defendants left without obtaining any additional medical or mental health care for
Plaintiff. For the purpose of notice pleading, Plaintiff has alleged Defendants McBride,
Newkirk, Biros, and Nurse Nicky were deliberately indifferent to his serious medical or
mental health condition.
While it is difficult to follow the timeline in the complaint, Plaintiff also
Defendants Leinger, Dame, Farley, and the three John Doe Defendants forceable took
him back to his cell on July 1, 2019. During this transport, Plaintiff says the officers
placed him in painful restraints and caused significant injuries to his wrists. Plaintiff
has adequately alleged the officers used excessive force in violation of his Eighth
Amendment rights. Plaintiff also claims the Defendants committed the state law tort of
battery.
Plaintiff further claims Officers Dame, Cullman, and Bertville failed to intervene
to stop the use of excessive force. (Comp, p. 2). However, it is unclear from the
complaint if Officers Cullman or Bertville were even in the same area during this
incident. In addition, Plaintiff alleges Defendant Dame was a member of the tactical
team which used excessive force. Plaintiff has not clearly articulated a claim based on a
failure to intervene.
Plaintiff has adequately alleged Officers Dame, Bertville, Henson, Henkel, Pufall,
Nurse Sherry, and the three John Doe Defendants were deliberately indifferent to his
new, wrist injury when they delayed providing medical care.
Plaintiff has also adequately alleged an Eighth Amendment violation based on
his claim that an officer unnecessarily squeezed his buttocks in a degrading manner.
“An unwanted touching of a person's private parts, intended to humiliate the victim or
gratify the assailant's sexual desires, can violate a prisoner's constitutional rights
whether or not the force exerted by the assailant is significant.” Washington v. Hively,
695 F.3d 641, 643 (7th Cir. 2012). While Plaintiff does not identify the specific Defendant
involved, he does state it was a member of the tactical team currently identified as John
Doe #1, John Doe #2, and John Doe #3. (Comp., p. 15).
The Court notes in his list of potential allegations, Plaintiff claims additional
Defendants were also responsible for using excessive force or failing to provide him
with needed medical care. However, a Plaintiff must “show that the defendants were
personally responsible for the deprivation of their rights” in order to hold them liable
pursuant to 42 U.S.C. §1983. See Wilson v. Warren Cty., Illinois, 2016 WL 3878215, at *3
(7th Cir. 2016). “A defendant is personally responsible ‘if the conduct causing the
constitutional deprivation occurs at his direction or with his knowledge and consent.’”
Id. quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). For instance, Plaintiff
cannot hold Warden Kennedy responsible for failing to provide him medical care
simply because he is a supervisor. See Ali v. West, 2017 WL 176304, at *3 (E.D.Wis. Jan.
17, 2017)(“[b]ecause personal involvement is required for liability to attach, the
respondeat superior doctrine—supervisor liability—is not applicable to Section 1983
actions.”).
Plaintiff has listed other violations without providing any factual support. For
instance, Plaintiff says the Defendants retaliated against him for his “political
connections” and complaints about prison conditions when they instituted a new
cuffing policy. (Comp., p. 3). To state a retaliation claim, Plaintiff must allege “(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 [d]efendants' decision to
take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.2009) (internal
quotations omitted). Plaintiff’s political connections are not a protected activity, and
Plaintiff has failed to identify any specific protected activity which occurred before July
1, 2019. In addition, it appears the cuffing guidelines were the result of an established
Administrative Directive, not a change in policy.
Plaintiff has also failed to articulate a violation of his Equal Protection rights, a
violation of the Americans with Disabilities Act, or an official capacity claim.
II. MOTION FOR EMERGENCY INJUNCTIVE RELIEF.
Plaintiff has also filed a motion for a temporary restraining order and
preliminary injunction. A temporary restraining order (TRO) can be issued without
notice to the party to be enjoined, but it may last no more than fourteen days. Fed. R.
Civ. P. 65(b)(2). A court may only grant the motion if “specific facts in an affidavit or a
verified complaint clearly show that immediate or irreparable injury, loss, or damage
will result to the movant before the adverse party can be heard in opposition.” Fed. R.
Civ. P. 65(b)(1)(A). This relief is warranted “to prevent a substantial risk of injury from
ripening into actual harm.” Farmer v. Brennan, 511 U.S. 825, 845 (1994). A TRO is an
“emergency remedy” designed to “maintain the status quo until a hearing can be held
on an application for a preliminary injunction.” Crue v. Aiken, 137 F.Supp.2d 1076, 1082
(C.D.Ill. April 6, 2001).
On the other hand, a preliminary injunction can be issued only after the adverse
party is given notice and an opportunity to oppose the motion. See Fed. R. Civ. P.
65(a)(1). “A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is
in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)
(citations omitted). See also Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Woods v.
Buss, 496 F.3d 620, 622 (7th Cir. 2007); Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999).
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).
In this case, Plaintiff asks the Court to order Defendants to stop handcuffing him
from behind his back when moving him in the facility due to the “irreparable nerve
damage to his hands, wrists, fingers, and shoulders.” (Mot., p. 2-3).
However, Plaintiff has not articulated a claim based on the overall policy of
handcuffing segregation inmates. Instead, his complaint is limited to the decision to
handcuff Plaintiff from behind when he told officers on July 1, 2019 that he had inserted
a piece of metal in his arm and he was in severe pain.
Even if Plaintiff had articulated a claim based on the overall cuffing policy,
Plaintiff does not allege he was ever diagnosed with permanent nerve damage or any
other medical condition as a result of the handcuffs. The attached medical records
concern another time period and a different injury. Furthermore, if Plaintiff is
experiencing any medical issues due to the handcuffs, he must ask a facility doctor to
approve a cuffing permit. None of the named Defendants can approve a permit based
on a medical condition. Consequently, Plaintiff has failed to demonstrate his
underlying case has some likelihood of success on the merits and he has failed to
demonstrate he will suffer an immediate and irreparable loss if the Court does not
intervene. For all the reasons stated, the motion for preliminary injunctive relief is
denied. [6].
III. MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff has also filed a motion for appointment of counsel. Plaintiff has no
constitutional right to counsel in this case. In addition, the Court cannot require an
attorney to accept pro bono appointment in a civil case. The most the Court can do is
ask for volunteer counsel. See Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir.
1992).
In considering Plaintiff’s motion, the Court must ask two questions: “(1) has the
indigent plaintiff made a reasonable attempt to obtain counsel or been effectively
precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff
appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007),
citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993).
In this case, Plaintiff has attached a copy of letter directed generally to
“attorneys,” but he has not provided a list of any specific attorneys contacted. (Mot, p.
4). The Court does not find Plaintiff has adequately demonstrated a reasonable attempt
to find counsel on his own. Plaintiff’s motion is denied with leave to renew. [5].
IT IS THEREFORE ORDERED:
1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the
Court finds the Plaintiff alleges: a) Defendants McBride, Newkirk, Biros, and
Nurse Nicky were deliberately indifferent to his serious medical or mental health
condition on July 1, 2019, when they refused to provide medical or mental health
care after Plaintiff inserted a piece of metal into his arm; 2) Defendants Leinger,
Dame, Farley, and the three John Doe Defendants violated the Eighth
Amendment and committed the state law tort of battery when they forcibly
escorting Plaintiff to his cell on July 1, 2019 and causing injury to his wrists; 3)
Officers Dame, Bertville, Henson, Henkel, Pufall, Nurse Sherry, and the three
John Doe Defendants were deliberately indifferent to his new, wrist injury when
they delayed providing medical care; and 4) one of the John Doe Defendants
violated Plaintiff’s Eighth Amendment rights when he squeezed Plaintiff’s
buttocks in a degrading manner. The claims are stated against the Defendants in
their individual capacities only. Any additional claims shall not be included in
the case, except at the Court’s discretion on motion by a party for good cause
shown or pursuant to Federal Rule of Civil Procedure 15.
2) This case is now in the process of service. Plaintiff is advised to wait until
counsel has appeared for Defendants before filing any motions, in order to give
Defendants notice and an opportunity to respond to those motions. Motions filed
before Defendants' counsel has filed an appearance will generally be denied as
premature. Plaintiff need not submit any evidence to the Court at this time, unless
otherwise directed by the Court.
3) The Court will attempt service on Defendants by mailing each Defendant a
waiver of service. Defendants have 60 days from service to file an Answer. If
Defendants have not filed Answers or appeared through counsel within 90 days
of the entry of this order, Plaintiff may file a motion requesting the status of
service. After Defendants have been served, the Court will enter an order setting
discovery and dispositive motion deadlines.
4) With respect to a Defendant who no longer works at the address provided by
Plaintiff, the entity for whom that Defendant worked while at that address shall
provide to the Clerk said Defendant's current work address, or, if not known, said
Defendant's forwarding address. This information shall be used only for
effectuating service. Documentation of forwarding addresses shall be retained
only by the Clerk and shall not be maintained in the public docket nor disclosed
by the Clerk.
5) Defendants shall file an answer within 60 days of the date the waiver is sent by
the Clerk. A motion to dismiss is not an answer. The answer should include all
defenses appropriate under the Federal Rules. The answer and subsequent
pleadings shall be to the issues and claims stated in this Order. In general, an
answer sets forth Defendants' positions. The Court does not rule on the merits of
those positions unless and until a motion is filed by Defendants. Therefore, no
response to the answer is necessary or will be considered.
6) Once counsel has appeared for a Defendant, Plaintiff need not send copies of
his filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will
file Plaintiff's document electronically and send a notice of electronic filing to
defense counsel. The notice of electronic filing shall constitute service on
Defendants pursuant to Local Rule 5.3. If electronic service on Defendants is not
available, Plaintiff will be notified and instructed accordingly.
7) Counsel for Defendants is hereby granted leave to depose Plaintiff at his place
of confinement. Counsel for Defendants shall arrange the time for the deposition.
8) Plaintiff shall immediately notify the Court, in writing, of any change in his
mailing address and telephone number. Plaintiff's failure to notify the Court of a
change in mailing address or phone number will result in dismissal of this lawsuit,
with prejudice.
9) Within 10 days of receiving from Defendants’ counsel an authorization to
release medical records, Plaintiff is directed to sign and return the authorization
to Defendants’ Counsel.
10) Once all or most of the Defendants have filed an answer to the complaint,
the Court will set this case for a hearing pursuant to Rule 16 of the Federal Rules
of Civil Procedure. During this hearing, the parties must provide additional
information concerning any unserved Defendants. In addition, the parties must
clarify whether Plaintiff received a disciplinary ticket relating to any of the
incidents in his complaint, and whether he lost good time credits as a result.
Finally, Defendants must verify whether any relevant video or digital
recordings exist.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) Dismiss Defendants Kennedy, Torres, and Whitecotton for failure to state a
claim upon which relief can be granted pursuant to by 28 U.S.C. §1915A;
2) Deny Plaintiff’s motion for preliminary injunctive relief, [6]; 3) Deny
Plaintiff’s motion for appointment of counsel with leave to renew, [5]; 4)
Attempt service on Defendants pursuant to the standard procedures; 5) Set an
internal court deadline 60 days from the entry of this order for the court to
check on the status of service and enter scheduling deadlines; and 6) Enter the
Court's standard qualified protective order pursuant to the Health Insurance
Portability and Accountability Act.
ENTERED this 9th day of January, 2020.
s/ James E. Shadid
____________________________________________
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE