Opinion

Askew v. Bainter

Court
District Court, C.D. Illinois
Filed
May 30, 2023
Cited by
0 cases
Authority
More cited than 20.7%

The opinion

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

CARL ASKEW, )

Plaintiff, )

)

vs. ) Case No. 23-1153

)

KYLE BAINTER, et al., )

Defendants. )

MERIT REVIEW ORDER

This cause is before the Court for a merit review of Plaintiff’s complaint. (Doc. 1).

The Court is required by 28 U.S.C. § 1915A to “screen” 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.” § 1915A.

Plaintiff alleges Correctional Officers Kyle Bainter, Silva, and Adams, Sergeant N.

Smith, T. Bordner, and T. Clark violated his constitutional rights while he was

incarcerated at Illinois River Correctional Center.

Plaintiff states he was housed in segregation unit 5, house cell 30 on April 11, 2022.

When Defendant Bainter approached his cell, Plaintiff asked him to notify Defendant

Smith that he needed to speak with him. Plaintiff alleges Defendant Bainter refused and,

without any warning, violently slammed Plaintiff’s right hand in the steel chuckhole

several times. Plaintiff alleges he suffered a broken finger, and his hand was red and

swollen. Plaintiff states surveillance cameras located in the segregation unit captured the

incident between 11:00 a.m. – 12:30 p.m.

To state an excessive force claim, Plaintiff must show that the force was applied

maliciously and sadistically, not in a good faith effort to maintain or restore discipline.

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. Id. at 320. “[W]hile a

plaintiff need not demonstrate a significant injury to state a claim for excessive force

under the Eighth Amendment, ‘a claim ordinarily cannot be predicated on a de minimis

use of physical force.’” Outlaw v. Newkirk, 259 F.3d 833, 837–38 (7th Cir. 2001) (internal

citations omitted). The Court must balance the amount of the force used against the need

for the force. If no force is necessary, even de minimis force may not be used. Reid v. Melvin,

695 Fed.Appx. 982, 983-84 (7th Cir. 2017). Based on his allegations, the Court finds Plaintiff

has articulated an Eighth Amendment excessive force claim against Defendant Bainter

for allegedly slamming the chuckhole door on Plaintiff’s right hand several times on

April 11, 2022. Plaintiff also alleges Defendant Bainter committed the state law torts of

assault and battery.

Plaintiff next alleges that when Defendant Bainter began walking away, Plaintiff

yelled to him to provide medical assistance for his injuries, but Defendant continued

walking and said, “I’m not getting you shit, fuck your hand.” (Doc. 1 at 12). The Seventh

Circuit has indicated that prison officials who assault prisoners should provide them with

immediate medical care:

When guards use excessive force on prisoners, the

requirements for proving deliberate indifference to the

medical needs of the beaten prisoners ought to be relaxed

somewhat. Beating a person in violation of the Constitution

should impose on the assailant a duty of prompt attention to

any medical need to which the beating might give rise . . . .

Cooper v. Casey, 97 F.3d 914, 917 (7th Cir. 1996). The Court finds Plaintiff has alleged an

Eighth Amendment deliberate indifference claim against Defendant Bainter for refusing

to get medical assistance for Plaintiff’s injured hand on April 11, 2022.

Plaintiff also alleges Defendant Silva, who was present during the alleged incident,

failed to intervene and did not get Plaintiff medical attention after witnessing the assault.

A failure to intervene claim requires evidence of the following: (1) the defendant knew of

the unconstitutional conduct; (2) the defendant had a realistic opportunity to prevent the

harm; (3) the defendant failed to take reasonable steps to prevent the harm; and (4) the

plaintiff suffered harm as a result. Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). The

Court finds Plaintiff has articulated a failure to intervene claim against Defendant Silva,

who was present but did not attempt to stop Defendant Bainter from smashing Plaintiff’s

hand in the chuckhole multiple times.

However, Plaintiff has failed to articulate a deliberate indifference claim against

Defendant Silva. It is unclear from Plaintiff’s complaint if Defendant Silva was aware of

his injuries or if Plaintiff asked Defendant Silva for medical attention, and he refused.

(See Doc. 1 at 21, ¶ 64).

Plaintiff next alleges Defendant Adams from Internal Affairs was notified about

the incident. Plaintiff contends that his rights were violated when Defendant Adams

failed to immediately investigate the altercation on April 11, 2022. Plaintiff does not allege

Defendant Adams was involved in the use of excessive force. Plaintiff’s allegations are

insufficient to state a claim under § 1983 because Plaintiff does not have a constitutional

right to a thorough investigation. Haywood v. Marathon Cnty. Sheriff Dep't, 2007 WL

5633391, at *3 (W.D. Wis. Aug. 3, 2007); Wiley v. Miracle, 2021 WL 6091274, at *2 (S.D. Ill.

Dec. 23, 2021) (“there is no due process right to an investigation”). Thus, Defendant

Adams is DISMISSED for failure to state a claim.

Several hours after the incident, Nurse K. Buccolan entered the segregation wing.

Plaintiff requested medical attention. She allegedly told him his hand and/or fingers

could be broken, provided Ibuprofen, and scheduled an x-ray.

On April 14, 2022, a doctor examined Plaintiff’s hand. Plaintiff was does indicate

what additional medical care was provided. Plaintiff states his hand remained swollen,

red, and painful for a month, his mobility was limited, and he was unable to engage in

any activities.

Plaintiff states he sent Defendants Clark and Bordner a letter informing them

about the April 11, 2022 incident, but they did not respond. Plaintiff claims Defendants

Clark and Bordner were required to investigate the situation based upon their role as

wardens. An individual is liable under § 1983, however, only if he or she personally

participated in the alleged deprivation. Palmer v. Marion Cnty., 327 F.3d 588, 594 (7th Cir.

2003); Glasco v. Prulhiere, 2009 WL 54298, at *1 (S.D. Ind. Jan. 8, 2009) (“[e]ven if [ plaintiff]

wrote letters to these defendants, this fact alone is insufficient to support recovery from

supervisory defendants.”); Diaz v. McBride, 1994 WL 750707, at *4 (N.D. Ind. Nov.

30,1994) (holding that a plaintiff could not establish personal involvement, and subject a

prison official to liability under § 1983, merely by sending the official various letters or

grievances complaining about the actions or conduct of subordinates). Defendants cannot

be held liable merely because of their supervisory position, as the doctrine of respondeat

superior (supervisor liability) does not apply to actions filed under § 1983. Pacelli v. DeVito,

972 F.2d 871, 877 (7th Cir. 1992). Therefore, Defendants Bordner and Clark are

DISMISSED for failure to state a claim.

Plaintiff also files a Motion to Request Counsel. (Doc. 5). "There is no right to court-

appointed counsel in federal civil litigation." Olson v. Morgan, 750 F.3d 708, 711 (7th Cir.

2014). However, the district court has the discretion to recruit a volunteer to represent a

plaintiff who cannot otherwise afford counsel. Navejar v. Igiola, 718 F.3d 692, 696 (7th Cir.

2013). Evaluating whether to recruit counsel involves a two-step process. First, the Court

must determine if the plaintiff made a reasonable attempt to secure counsel on his own,

or conversely, if he has been precluded from doing so. Romanelli v. Suliene, 615 F.3d 847,

851 (7th Cir. 2010). "This is a mandatory, threshold inquiry that must be determined

before moving to the second inquiry of whether Plaintiff is competent to litigate his

claims." Eagan v. Dempsey, 2021 WL 456002, at *8 (7th Cir. 2021) (citing Davis v. Moroney,

857 F.3d 748, 753 (7th Cir. 2017)). Plaintiff does not indicate how many attorneys he

contacted. He attaches only one letter from an attorney who declined representation. The

Court is unable to determine if Plaintiff make a reasonable effort to find an attorney. His

motion is therefore DENIED. If Plaintiff renews his motion, he must provide a list of

attorneys he contacted or copies of letters sent or received in his effort to find counsel.

IT IS THEREFORE ORDERED:

1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the

Court finds Plaintiff alleges the following claims: (1) Defendant Bainter used excessive

force in violation of the Eighth Amendment when he slammed Plaintiff’s right hand in

the chuckhole multiple times on April 11, 2022; (2) Defendant Bainter committed the state

law torts of assault and battery on April 11, 2022; (3) Defendant Bainter was deliberately

indifferent to Plaintiff’s serious medical needs in violation of the Eighth Amendment

when he refused to provide medical attention for Plaintiff’s injuries on April 11, 2022;

and (4) Defendant Silva failed to intervene to stop the use the excessive force on April 11,

2022. 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) Defendants Adams, Clark, and Bordner are DISMISSED for failure to state

a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure

12(b)(6) and 28 U.S.C. § 1915A. The Clerk is directed to TERMINATE Defendants Adams,

Clark, and Bordner.

3) Plaintiff's Motion to Request Counsel [5] is DENIED.

4) 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.

5) 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.

6) 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.

7) 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.

8) 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.

9) 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.

10) 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.

11) 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.

12) Plaintiff shall be provided a copy of all pertinent medical records upon

request.

13) The Clerk is directed to enter the standard qualified protective order

pursuant to the Health Insurance Portability and Accountability Act.

14) 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.

ENTERED: 5/30/23

s/James E. Shadid

_________________________________________

JAMES E. SHADID

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.