The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
MICHEL KENSER, )
Plaintiff, )
)
vs. ) No. 20-3018
)
OFFICER BOROLA, et. al. )
Defendants. )
MERIT REVIEW ORDER
JAMES E. SHADID, U.S. District Judge:
This cause is before the Court for merit review of the Plaintiff’s complaint and
consideration of Plaintiff’s motion for appointment of counsel. [4].
The Court is 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, a pro se prisoner, alleges his constitutional rights were violated by
Sangamon County Sherriff’s Deputies Borola, Zach, Nelson, Scott Loftus, and Kirby.
Plaintiff says he was a pretrial detainee when the Defendants used excessive force after
a court appearance on January 6, 2020 and then refused to provide him with medical
care.
Plaintiff says after court, Defendants Borola and Zach began to threaten him.
Defendant Borola punched Plaintiff in the “back with (an) open hand caused me
excruciating pain.” (Comp, p. 5). Plaintiff also says the action was taken “out of
retaliation” due to an apparent issue in court, but Plaintiff does not clarify further.
(Comp, p. 5).
Once in his cell, the officers put the handcuffed Plaintiff on his knees on the floor
to remove his handcuffs which again caused him “excruciating” pain. (Comp., p. 5).
Plaintiff asked Defendants Borola, Zach, and Nelson for medical care for his
“pain and injuries,” but the officers ignored his request. (Comp., p. 6). Plaintiff does not
state what injuries he suffered.
Defendant Loftus threatened to “write up” Plaintiff if he filed a grievance.
(Comp., p. 6). Defendant Kirby also retaliated when he moved Plaintiff to segregation
because of “the issue” in court. (Comp, p. 6).
There are several problems with Plaintiff’s complaint. The Supreme Court has
held “the due process standard for excessive force claims by pretrial detainees is less
demanding than the Eighth Amendment standard for excessive force claims by
convicted inmates.” Williams v. Cook Cty., 2018 WL 3970145, at *5 (N.D. Ill. Aug. 20,
2018); citing Kingsley v. Hendrickson, 576 U.S. 389, 135 S.Ct. 2466(2015). Specifically, the
“a pretrial detainee must show only that the force purposely or knowingly used against
him was objectively unreasonable.” Kingsley, 135 S. Ct. at 2473.
Nonetheless, “a claim ordinarily cannot be predicated upon a de minimis use of
physical force.” DeWalt v. Carter, 224 F.3d 607, 620 (7th Cir. 2000); see also Brown v.
Muskegon County Jail, 2019 WL 2482359, at *4 (W.D.Mich. June 14, 2019)(detainee has
alleged at most a de minimis use of force, not an unreasonable one).
In this case, Plaintiff alleges he was slapped on the back with an open hand.
Plaintiff also alleges he was made to kneel as his handcuffs were removed which is a
fairly typical practice in correctional facilities. It is unclear why Plaintiff believes the
force used was excessive or why he alleges he was in excruciating pain. Plaintiff makes
vague reference to injuries, but it is unclear what injuries he may have suffered as a
result of either action.
In addition, to state a Fourteenth Amendment claim based on inadequate
medical treatment, Plaintiff must still allege he suffered from a serious medical
condition. Miranda v. County of Lake, 900 F.3d 335, 352 (7th Cir. 2018). Plaintiff has not
indicated why he needed medical care.
Finally, to state a retaliation claim, a 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 has not alleged he participated in a specific activity protected by the
First Amendment. Plaintiff instead makes vague reference to an issue in court and his
right to free speech. Plaintiff must identify the specific conduct which he believes
prompted Defendants to retaliate.
Therefore, Plaintiff’s complaint is dismissed for failure to state a claim upon
which relief can be granted and as a violation of Rule 8 of the Federal Rules of Civil
Procedure which requires “a short and plain statement of the claim showing that the
pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2).
The Court will allow Plaintiff an opportunity to file an amended complaint if he
can clarify his intended allegations. Any amended complaint must stand complete on
its own, must include all claims and defendants, and must not make reference to any
previous filing or complaint. Plaintiff must also provide the additional information
noted in this order. For instance, why was the force excessive, what injury did Plaintiff
suffer, what medical care did he need, and what action prompted retaliatory action?
Plaintiff must file any proposed amended complaint within 21 days of this order.
Plaintiff has also filed a motion for appointment of counsel. [4]. Plaintiff has no
constitutional right to the appointment of counsel. 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 specific 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 not demonstrated any attempt to find counsel on his
own such as a list of attorneys contacted or copies of letters sent or received. Therefore,
Plaintiff’s motion is denied with leave to renew after he clarifies his intended claims
and defendants. [4].
IT IS THEREFORE ORDERED:
1) Plaintiff’s complaint is dismissed as a violation of Federal Rule of Civil
Procedure 8(a)(2) and pursuant to 28 U.S.C. §1915A for failure to state a claim upon
which relief can be granted.
2) If Plaintiff can clarify his claims, he may file an amended complaint in
compliance with this order within 21 days or on or before May 27, 2020. If Plaintiff
does not file his amended complaint on or before May 27, 2020 or does not follow
the Court’s directions, his case may be dismissed without prejudice.
3) Plaintiff’s motion for appointment of counsel is denied with leave to renew after
Plaintiff clarifies his intended claims. [4].
4) The Clerk of the Court is to provide Plaintiff with a blank complaint form to
assist him and reset the internal merit review deadline within 30 days.
ENTERED this 6th day of May, 2020.
s/ James E. Shadid
_________________________________________
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE