Richardson v. Brown

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

JOSHUA RICHARDSON, )

)

Plaintiff, )

v. ) No.: 20-cv-1285-JBM

)

ROB JEFFREYS, et al., )

)

Defendants. )

MERIT REVIEW

Plaintiff, proceeding pro se and currently incarcerated at the Menard Correctional Center

(“Menard”), files a complaint under 42 U.S.C. § 1983, alleging excessive force and violations of

due process at the Pontiac Correctional Center (“Pontiac”). The case is before the Court for a

merit review pursuant to 28 U.S.C. § 1915A. In reviewing the amended complaint, the Court

accepts the factual allegations as true, liberally construing them in Plaintiff's favor. Turley v.

Rednour, 729 F.3d 645, 649-51 (7th Cir. 2013). However, conclusory statements and labels are

insufficient. Enough facts must be provided to “state a claim for relief that is plausible on its

face.” Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013)(citation and internal

quotation marks omitted). While the pleading standard does not require “detailed factual

allegations,” it requires “more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Wilson v. Ryker, 451 Fed. Appx. 588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009).

FACTS

Plaintiff pleads that on August 4, 2019, he was in the Pontiac East House General

Population Yard (“Big Yard.”), apparently with at least 45 other inmates. Plaintiff heard an

inmate crying for help and saw that he was being stabbed by another. Plaintiff intervened and

was hit by a third inmate and knocked unconscious. Plaintiff asserts that he was thereafter

severely beaten by multiple inmates. Plaintiff has provided an August 4, 2019 Adjustment

Committee Final Report which documents the event, indicating that multiple offenders were

fighting and that a warning shot had to be fired to quell the disturbance. [ECF 1 at 25].

Plaintiff alleges that he went in and out of consciousness at least five times after the

beating. During one period of lucidity, he claims that he was maced in the face by an

unidentified female guard even though he was in an “unmistakable and undeniable state of

unconsciousness.” Plaintiff alleges that the Jane Doe officer jumped on his back and punched the

right side of his face and head. The officer extended Plaintiff’s arms and upward while

attempting to handcuff him. Plaintiff began screaming that his arms would break and felt both of

his arms snap at the elbows. Plaintiff lost consciousness and when he came to, he was on his

knees with his face slammed against a chain link fence. Plaintiff claims that in addition to

fracturing his elbows, the Jane Doe Officer dislocated his right elbow and both of his shoulders.

Plaintiff lost and gained consciousness again, finding that he was lying on a medical

exam table in the Pontiac healthcare unit. A nurse there told him that they had to set both of his

shoulders as they had been dislocated. Plaintiff claims, however, that the records from the

hospital to which he was taken did not document the dislocation so, “I don’t know.” Plaintiff

asked to have the handcuffs removed and, while the Tact Team officers initially refused, they did

so, based on the nurses’ recommendation.

Plaintiff was thereafter taken by ambulance to the Saint James Hospital emergency room.

Diagnose diagnostic tests were done which documented a fracture to the left elbow with a

fracture and dislocation of the right elbow. Plaintiff claims to have suffered residual nerve

damage in his right arm as a result. On August 5, 2019 , Plaintiff was transferred to the OSF

Saint Francis Medical Center in Peoria. There, he was diagnosed as having suffered a

concussion.

On August 7, 2019, Plaintiff was transferred to Menard, where he spent three weeks in

the infirmary. Plaintiff alleges that he was thereafter unjustly placed in three months segregation

due to the August 4, 2019 incident. As noted, Plaintiff has provided the August 4, 2019

Adjustment Committee Report which documents that Plaintiff was found guilty of 105-

Dangerous Disturbances; 214- Fighting; and 313-Disobeying a Direct Order. He was sentenced

to 3 months demotion to C Grade, 3 months in segregation and 3 months of commissary

restrictions.

Plaintiff admits that he is unable to identify the Jane Doe Officer but claims that video

evidence and the testimony of inmate eyewitnesses, currently unidentified, will substantiate his

claim. Plaintiff names Rob Jeffreys, the Acting Director of the Illinois Department of

Corrections (“IDOC”), Warden Teri Kennedy, Security Warden Melvin French and John and

Jane Doe Officers. Plaintiff alleges claims of excessive force and violations of due process. He

requests injunctive relief, the expungement of the disciplinary conviction; and compensatory and

punitive damages.

ANALYSIS

In claims of excessive force, the relevant inquiry is “whether force was applied in a good

faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose

of causing harm.” Whitley v. Albers, 475 U.S. 312, 320-21 (1986). This is so, as prison officials

considering the use of force must balance the threat presented to inmates and prison officials

against the possible harm to the inmate against whom the force is to be used. Here, Plaintiff

alleges that the Jane Doe Officer maced and severely injured him even though he was only semi-

conscious and incapacitated. As Plaintiff pleads that the Defendant Officer used force which was

not necessary to restore or maintain discipline, he may proceed in an excessive force claim

against the Jane Doe Defendant.

Plaintiff names other unidentified John and Jane Doe officers but only pleads against the

single Jane Doe officer who maced and injured him. As a result, the remaining Doe Defendants

are dismissed. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998) (merely naming a

defendant in the caption is insufficient to state a claim).

Plaintiff names IDOC Director Jeffreys, Warden Kennedy, and Security Warden French

but does not plead any claims against them. See id. at 334. “[T]o be liable under [Section] 1983,

an individual defendant must have caused or participated in a constitutional deprivation.” Pepper

v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir.2005) (citations omitted). Furthermore, to the

extent that Plaintiff seeks to proceed against them due to their supervisory role over others, the

doctrine of respondeat superior (supervisor liability) does not apply to actions filed under 42

USC §1983. Pacelli v. DeVito, 972 F.2d 871, 877 (7th Cir. 1992). Defendants Jeffreys and

French are DISMISSED. Defendant Kennedy will remain for the sole purpose of aiding in

identifying the Jane Doe Defendant. See Donald v Cook Co. Sheriff’s Dept., 95 F.3d 548, 557

(7th Cir. 1996) (district courts are to aid pro se litigants in identifying Doe defendants). After the

Jane Doe is identified, Defendant Kennedy may move to be dismissed.

Plaintiff also alleges a violation of due process in the fact that he was convicted at

disciplinary hearing without identifying any due process rights infringed. An inmate is entitled to

due process before he is deprived of a constitutionally protected liberty interest. Piggie v.

McBride, 277 F.3d 922, 924 (7th Cir.2002). If a cognizable liberty or property interest is

involved, constitutional due process must be provided before those interests can be constrained.

Wilson v. Hardy, No. 11-743, 2011 WL 976558, at *3 (N.D. Ill. Mar. 14, 2011). Here, however,

Plaintiff has failed to identify a protected liberty or property interest in the fact that he was

sentenced to segregation, demoted to C Grade and lost commissary privileges. Zimmerman v.

Tribble, 226 F.3d 568, 572 (7th Cir.2000) (a prisoner does not have a protected liberty interest in

not being placed in segregation). See Thomas v. Ramos, 130 F.3d 754, 761 (7th Cir. 1997)

(demotion to C grade status does not implicate constitutional interest). Id. at 761 citing Williams

v. Ramos, 71 F.3d 1246, 1250 (7th Cir. 1995) (due process did not apply where “the length of the

inmate's sentence was not affected and that there was no indication that the treatment the inmate

received in disciplinary segregation was substantially different than that experienced by inmates

confined under other forms of discretionary segregation). Accordingly, Plaintiff’s due process

claim is DISMISSED without prejudice to Plaintiff seeking the Court’s approval to amend the

due process claim upon motion, providing a copy of the proposed amendment for the Court’s

review in deciding whether to allow the filing of the amended complaint.

IT IS THEREFORE ORDERED:

1. This case shall proceed on the excessive force claim asserted against the Jane Doe

Defendant. All other claims will not be included in the case, except in the Court's discretion upon

motion by a party for good cause shown, or by leave of court pursuant to Federal Rule of Civil

Procedure 15. Defendants Jeffreys, French and the remaining Jane and John Doe Defendants are

DISMISSED. Defendant Warden Kennedy will remain for the sole purpose of aiding in

identifying the Jane Doe Defendant after which time she may be dismissed.

2. Plaintiff files [5] and a supplement at [6], seeking the recruitment of pro bono counsel.

The Court does not possess the authority to require an attorney to accept pro bono appointments

on civil cases such as this. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). In determining

whether the Court should attempt to find an attorney to voluntarily take a case, the question is

whether the plaintiff appears competent to litigate his own claims. Pruitt at 655. Here, Plaintiff

alleges excessive force exerted by a single individual. This claim does not appear overly

complex and at this juncture, it appears that Plaintiff can proceed on his own. [5] is DENIED.

3. The Clerk is directed to send to Defendant Kennedy pursuant to this District's internal

procedures: 1) a Notice of Lawsuit and Request for Waiver of Service; 2) a Waiver of Service; 3)

a copy of the Complaint; and 4) a copy of this Order.

4. If Defendant Kennedy fails to sign and return a Waiver of Service to the Clerk within

30 days after the Waiver is sent, the Court will take appropriate steps to effect formal service on

that Defendant and will require that Defendant pay the full costs of formal service pursuant to

Federal Rule of Civil Procedure 4(d)(2).

5. If Defendant Kennedy no longer works at the address provided by Plaintiff, the entity

for which Defendant worked at the time identified in the Complaint shall provide to the Clerk

Defendant's current work address, or, if not known, Defendant's forwarding address. This

information will be used only for purposes of effecting service. Documentation of forwarding

addresses will be maintained only by the Clerk and shall not be maintained in the public docket

nor disclosed by the Clerk.

6. Defendant Kennedy shall file an answer within the prescribed by Local Rule. A

Motion to Dismiss is not an answer. The answer it to include all defenses appropriate under the

Federal Rules. The answer and subsequent pleadings are to address the issues and claims

identified in this Order.

7. Plaintiff shall serve upon a Defendant who has been served, but who is not represented

by counsel, a copy of every filing submitted by Plaintiff for consideration by the Court and shall

also file a certificate of service stating the date on which the copy was mailed. Any paper

received by a District Judge or Magistrate Judge that has not been filed with the Clerk or that

fails to include a required certificate of service will be stricken by the Court.

8. Once counsel has appeared for a Defendant, Plaintiff need not send copies of filings to

that Defendant or to Defendant's counsel. Instead, the Clerk will file Plaintiff's document

electronically and send notice of electronic filing to defense counsel. The notice of electronic

filing shall constitute notice to Defendant pursuant to Local Rule 5.3. If electronic service on

Defendant is not available, Plaintiff will be notified and instructed accordingly.

9. Counsel for Defendant Kennedy is hereby granted leave to depose Plaintiff at

Plaintiff's place of confinement. Counsel for Defendant shall arrange the time for the depositions.

10. Plaintiff shall immediately notice the Court of any change in mailing address or

phone number. The Clerk is directed to 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.

IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:

1) ATTEMPT SERVICE ON DEFENDANTS PURSUANT TO THE STANDARD

PROCEDURES;

2) 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,

3) ENTER THE STANDARD QUALIFIED PROTECTIVE ORDER PURSUANT TO

THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT.

LASTLY, IT IS ORDERED THAT IF A DEFENDANT FAILS TO SIGN AND

RETURN A WAIVER OF SERVICE TO THE CLERK WITHIN 30 DAYS AFTER THE

WAIVER IS SENT, THE COURT WILL TAKE APPROPRIATE STEPS TO EFFECT

FORMAL SERVICE THROUGH THE U.S. MARSHAL'S SERVICE ON THAT

DEFENDANT AND WILL REQUIRE THAT DEFENDANT TO PAY THE FULL COSTS OF

FORMAL SERVICE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(d)(2).

___1_2_/_1_/_2_0_2_0__________________ ___ s/Joe Billy McDade _

ENTERED JOE BILLY McDADE

UNITED STATES DISTRICT JUDGE