Lisle v. Siddiqui

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

STEVEN D. LISLE, JR., )

)

Plaintiff, )

)

vs. ) Case No. 19-cv-00163-NJR

)

SIERRA SENOR-MOORE, )

WARDEN LASHBROOK, )

CASSANDRA CHITY, )

SUSAN HILL, )

SERGEANT WALKER, )

LUITENET ENGELAGE, )

MATTHEW E. MAJOR, )

OFFICER BROOKS, )

ANA SCHOTT, )

CHRISTOPHER HIGGERSON, )

UNKNOWN PARTY, 1–Nurse B, )

JOHN/JANE DOES, Officers and Nurses, )

MOHAMMED SIDDIQUI, )

DR. LEVEY, Mental Health, )

)

Defendants. )

MEMORANDUM AND ORDER

ROSENSTENGEL, District Judge:

Plaintiff Steven Lisle, an inmate in the custody of the Illinois Department of Corrections

currently incarcerated in Menard Correctional Center (“Menard”), brings this pro se action for

deprivations of his constitutional rights pursuant to 42 U.S.C. §1983. In the Complaint, Plaintiff

asserts claims under the Eighth Amendment for deliberate indifference to serious medical needs,

intentional disregard of a known suicide risk, and use of excessive force. He also alleges Illinois

state law negligent spoliation claims. Plaintiff seeks declaratory judgment, monetary damages, and

injunctive relief.

This case is now before the Court for preliminary review of the Complaint pursuant to

28U.S.C. § 1915A. Under Section 1915A, the Court is required to screen prisoner complaints to

filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). Any portion of a complaint that is

legally frivolous, malicious, fails to state a claim upon which relief may be granted, or requests

money damages from a defendant who by law is immune from such relief must be dismissed.

28U.S.C. § 1915A(b). At this juncture, the factual allegations of the pro se complaint are to be

liberally construed.Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

The Complaint

The Complaint makes the following allegations: Plaintiffis a mentally ill inmate who has

a history of suicide attempts that include self-mutilationwhile housed in the North IIsuicide watch

unit.1(Doc. 1, p. 3).He uses sharp objects found in his cell to inflict internal and external injuries.

(Doc. 1, pp. 3-4).Dr. Siddiqui, Dr. Levey, Mental Health Worker Hill, Nurse Schott, and Warden

Lashbrook know it is unsafe to place him on suicide watch in North II because he has access to

sharp objects that he can use to inflict internal and external injuries, which he has done repeatedly.

(Doc. 1, pp. 3-11). Plaintiff has been placed on suicide watch in North II despite the unsafe

conditions there.Id.

In January 2019, Plaintiffused a metal screw to cut himself and then swallowed the screw.

(Doc. 1, pp. 3-4).After the screw passed in a bowel movement, he swallowed it again. Id.Siddiqui,

Levey, Hill, Schott, and Lashbrook were aware Plaintiff had swallowed the metal screw and that

he had been placed on suicide watch in North II. Despite this knowledge, they took no action to

transfer him from North II to the health care unit where he would be under continuous observation.

(Doc. 1, pp. 3-11). On January 3, 2019, Plaintiff again used the screw to cut himself in a suicide

1 See, e.g., Lisle v. Goldman, SDIL Case No. 18-cv-01736-NJR-MAB (injuries from sharp objects found in cell);

Lisle, Jr. v. Butler, SDIL Case No. 16-cv-00422-NJR-DGW (injuriesfrom swallowing razorblades); Lisle v. Butler,

SDIL Case No. 15-cv-00965-MJR-SCW (three suicide attempts).

attempt while in North II. (Doc. 1, p. 4). Nurse B witnessed his injuries but refused to provide

medical care.(Doc. 1, pp. 4-5).

On January 7, 2019, Plaintiff caught Nurse Chitty giving him altered medication in an

attempt to poison him.(Doc. 1, pp.8, 11-12). The Effexor capsule she gave him had been opened

and contained an unknown white powdery substance. Id. He confronted her and grabbed the

medication. Id. Another nurse looked at the white powdery substance, stated it was not his

medication and could be deadly, and walked away when Plaintiff told her that he wanted the

substance tested. (Doc. 1, p.16). Nurse Chitty asked officers to assault Plaintiff to retrieve and/or

destroy the poisoned medication. (Doc. 1, pp. 8-9, 11-12). Officers Walker, Engelage, Brooks,

Major, and John Does (correctional officers) assaulted Plaintiff in an attempt to retrieve and/or

destroy the evidence. (Doc. 1, pp. 8-9, 11-12, 14-14). During the assault, Plaintiff was punched,

kicked, and choked.(Doc. 1, p. 7-9).

Plaintiff filed two grievances placingWarden Lashbrookon notice to save camera footage

in the North II suicide watch unit from the 3:00 –11:00 p.m. shifts onJanuary 3, 2019, and January

7, 2019.(Doc. 1, p. 12). Despite the notice, Lashbrook destroyed the camera footage.Id.

Sometime after the January 7 incidents, Plaintiff mailed samplesof his blood and the white

powdery substance to Sierra Senor-Moore, Office of the Attorney General, State of Illinois, and

requested the substance be tested. (Doc. 1, pp. 12-14, 25). Lisle notified the Court and all parties

in SDIL case no. 18-cv-1736-NJR that he had mailed the letter to Senor-Moore. Id. Thereafter,

Assistant Attorney General Christopher Higgerson notified Lisle that the letter had been received

and destroyed because it potentially contained hazardous materials. (Doc. 1, p. 25).

Preliminary Dismissals

Plaintiff alleges claims against each defendant in his or her individual and official

capacities. (Doc. 1, p. 2). With the exception of Warden Lashbrook, Plaintiff may not sue any of

the defendants in his or her official capacity. Individuals are not “persons” in their official

capacities under Section 1983. Plaintiff can only bring claims against individuals who were

personally involved in the deprivation of which he complains. See Sanville v. McCaughtry, 266

F.3d 724, 740 (7th Cir. 2001). Thus, to the extent that Plaintiff has attempted to bring claims

against Siddiqui, Levey, Unknown Party (Nurse B), Walker, Engelage, Brooks, Major, John Does

(correctionalofficers),Jane Doe (nurse),Chitty, Hill, Schott, Senor-Mooreand Higgersonin their

official capacities, those claims will be dismissed.

Discussion

Based on the allegations in the Complaint, the Court finds it convenient to designate the

followingcounts:

Count 1: Eighth Amendment deliberate indifference claim against Siddiqui

and Levey for failing to place Plaintiff in the health care unit for

continuous observation after he swallowed a metal screw he had

usedin a suicide attempt in January 2019.

Count 2: Eighth Amendment deliberate indifference claim against Nurse B

for denying Plaintiff medical treatment for injuries he sustained

during a suicide attempt onJanuary 3,2019.

Count 3: Eighth Amendment deliberate indifference claim against Walker,

Engelage, Brooks, Major, and John Does for denying Plaintiff

medical treatment for injuries they inflicted on January 7, 2019.

Count 4: Eighth Amendment excessive force claim against Walker,

Engelage, Brooks, Major, and John Does for assaulting Plaintiff by

punching, kicking, and choking himon January 7, 2019.

Count 5: Eighth Amendment excessive force claim against Chitty for

attempting to poison Plaintiff and inciting Walker, Engelage,

Brooks, Major, and John Does to assault himon January 7, 2019.

Count 6: Eighth Amendment intentional disregard of a known suicide risk

claim against Hill, Schott, Levey, and Lashbrook for allowing

Plaintiffto be placed in the North IIsuicide watchunit which posed

dangers to his health and safety in January 2019.

Count 7: Illinois state law negligent spoliation claim against Chitty, Brooks,

Walker, Engelage, Major, John Does, and Jane Doe for failing to

preserve and/or destroying the white powdery substance Chitty used

in an attempt to poison Plaintiff.

Count 8: Illinois state law negligent spoliation claim against Lashbrook for

destroyingcamera footagefrom the North IIunit on January 3, 2019

and January 7, 2019despite Plaintiff’s request that it be saved.

Count 9: Illinois state law negligent spoliation claim against Senor-Moore

and Higgersonfor destroying samplesof blood and awhite powdery

substancethat Plaintiff mailedtothe Office of the Attorney General,

State of Illinois, to be tested.

The parties and the Court will use these designations in all future pleadings and orders, unless

otherwise directed by a judicial officer of this Court. Any other claim that is mentioned in the

Complaint but not addressed in this Order should be considered dismissed without prejudice as

inadequately pled under the Twombly2 pleading standard.

Deliberate Indifference to Serious Medical Needs

An Eighth Amendment claim based on the denial of medical care requires a plaintiff to

show that (1) his medical condition was sufficiently serious, and (2) the defendants acted with

deliberate indifference to his medical needs. Rasho v. Elyea, 856 F.3d 469, 475-76 (7th Cir. 2017).

Siddiqui and Levey knew that Plaintiff had a history of attempting suicide and harming himself

when placed in the suicide watch cells in the North II unit. In January 2019, Siddiqui and Levey

knew Plaintiff had cut himself with a metal screw, swallowed the screw, passed the screw in a

bowel movement, and swallowed the screw again. Despite this knowledge, Levey discharged

2An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim

that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Plaintiff from the health care unit to be placed in the North II suicide watch unit while the screw

was still in Plaintiff’s body.Siddiquiwas aware of the circumstances buttook no action to remove

Plaintiff from the North II unit and return him to the health careunit under continuous observation.

The allegations are sufficientto allow Count 1 toproceed against Siddiqui and Levey.

The allegations in Count 2 sufficiently state a deliberate indifference against Nurse B

based on her decision not to provide Plaintiff with medical treatment after his attempted suicide

on January 3, 2019. Likewise, Count 3 states a claim against Walker, Engelage, Brooks, Major,

and John Does (correctional officers) because they denied Plaintiff medical treatment for injuries

he sustained when they assaulted him. See Cooper v. Casey, 97 F.3d 914 (7th Cir. 1996) (failure

to obtain medical assistance for an inmate who has been assaulted may constitute deliberate

indifference to a serious medical need). Accordingly, Count 2 will proceed against Nurse B and

Count 3 will proceed against Walker, Engelage, Brooks, Major, and John Does (correctional

officers).

Use of Excessive Force

“Correctional officers violate the Eighth Amendment when they use force not in a good

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

of causing harm.” Wilborn v. Ealey, 881 F.3d 998, 1006 (7th Cir. 2018) (internal citations and

quotation marks omitted).Walker, Engelage, Brooks, Major, and JohnDoes (correctional officers)

attacked Plaintiff at Chitty’srequest,punching, kicking, and choking him after the January 7, 2019

attempted poisoning incident. The purpose was to recover and destroy the evidence of the

attempted poisoning and to deter Plaintiff from reporting Nurse Chitty’s attempt to kill him.

Counts 4and 5sufficiently state claimsagainst Walker, Engelage, Brooks, Major, and John Does

(correctional officers) for use of excessive force and Chitty for inciting the excessive force.

Intentional Disregard of a Known Suicide Risk

Like all Eighth Amendment claims, a claim involving attempted suicide includes an

objective and a subjective element, which requires the plaintiff to show: (1) the harm that befell

him was objectively, sufficiently serious, and posed a substantial risk to his health or safety, and

(2) the individual defendants were deliberately indifferent to the substantial risk to his health and

safety. Collins v. Seeman, 462 F.3d 757, 760 (7th Cir. 2006) (citing Farmer v. Brennan, 511 U.S.

825, 832 (1994)). Suicide, even attempted suicide, qualifies as a serious harm. Sanville v.

McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001). In the case of an attempted suicide, however, the

second element requires a dual showing that the defendant: (1)subjectively knew the prisoner was

at substantial risk of committing suicide, and (2) intentionally disregarded the risk. Collins, 462

F.3d at 761 (citations omitted). Hill, Schott, Warden Levey, and Lashbrook knew Plaintiff had a

history of attempting to kill and/or harm himself when placed in the North II suicide watch cells.

Despite their awareness of his known risk of suicide, they allowed Plaintiff to be placed in North

II during the month of January 2019. Count 6 will proceed against Hill, Schott, Levey, and

Lashbrook.

Negligent Spoliation Claims

The negligent spoliation claims in Counts 7, 8, and 9 arise under Illinois state law.

Although Illinois does not recognize a claim for intention spoliation of evidence, a plaintiff can

bring a claim for negligent spoliation of evidence. Borsellino v. Goldman Sachs Group, Inc., 477

F.3d 502, 509-10 (7th Cir. 2007) (citing Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 273 (Ill.

1995)). Negligent spoliation is not an independent tort but rather is a type of negligence. Id. As

such, Plaintiff must allege a duty to protect the evidence allegedly destroyed, a breach of that duty,

causation, and damages. Id. As a general principle, there is no duty to preserve evidence under

Illinois law. Olivarius v. Tharaldson Prop. Management, Inc., 695 F.Supp.2d 824, 829 (N.D.Ill.

2010) (citing Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 269–70 (Ill. 1995)). A duty to preserve

evidence, however, may arise when a plaintiff satisfies both prongs of the following test: “(1) it

arises by agreement, contract, statute, special circumstance, or voluntary undertaking (called the

‘relationship’ prong), and (2) a reasonable person should have foreseen that certain evidence at

issue was material to a potential civil action (called the ‘foreseeability’ prong).” Olivarius, 695

F.Supp.2d at 829 (citing Dardeen v. Kuehling,821 N.E.2d 227, 231 (Ill.2004)).

Under the circumstances alleged in the Complaint, a special duty could not have arisen by

agreement, contract, statute, or voluntary undertaking. Accordingly, Plaintiff must allege facts

evidencing a “special circumstance” giving rise to a duty to preserve the camera footage. Illinois

courts have explained that to establish a special circumstance “something more than possession

and control are required, such as a request by the plaintiff to preserve the evidence and/or the

defendant’s segregation of the evidence for the plaintiff's benefit.” Martin v. Keeley & Sons, Inc.,

979 N.E.2d 22, 31 (Ill.2012).

The allegations in Counts 7,8,and9sufficientlystate negligent spoliation claims. Count

7 will proceed against Chitty, Walker, Engelage, Brooks, Major, and John Does (correctional

officers) for destroyingthe majority of the white powdery substanceused in theattempt to poison

Plaintiff. And, against Jane Doe nurse for failing to preserve the evidence at Plaintiff’s request.

Count 8 will proceed against Warden Lashbrookfor failing to preserve and/or destroying camera

footage from January 3, 2019and January 7, 2019. AndCount 9will proceed against Senor-Moore

and Higgerson for destruction of the white powdery substance that Plaintiff mailed to the Office

of the Attorney General to be tested for his attempted poisoning claim.

Identification of Unknown Defendants

Plaintiff will have the opportunity to engage in limited discovery to ascertain the identity

of the unknown defendants Nurse B, John Does (correctional officers), and Jane Doe (nurse).See

Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009). In this case, Warden

Lashbrook is already named in her official capacity and shall respond to discovery aimed at

identifying the unknown defendants associated with Menard.Guidelines for discovery will be set

by the undersigned judge. Once the names of the unknown defendants are discovered, Plaintiff

shall file a motion to substitute the newly identified defendants in place of the generic designations

in the case caption and throughout the Complaint.

Disposition

IT IS HEREBY ORDERED that Count 1 will proceed against Siddiqui and Levey.

Count2will proceed against Unknown Party (Nurse B).Count3will proceed against Walker,

Engelage, Brooks, Major,and John Does (correctional officers).Count 4will proceed against

Walker, Engelage, Brooks, Major,andJohn Does.Count5will proceed against Chitty.Count

6will proceed against Hill, Schott, Levey, andLashbrook.Count7will proceed against Chitty,

Walker, Engelage, Brooks, Major, John Does, and Jane Doe (Nurse). Count 8 will proceed

against Lashbrook. Count 9 will proceed against Sierra Senor-Moore and Christopher

Higgerson.

IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Lashbrook

(individual and official capacities), Siddiqui, Levey, Walker, Engelage, Brooks, Major, Chitty,

Hill, Schott, Lashbrook, Sierra Senor-Moore and Christopher Higgerson (individual

capacities): (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and

(2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a

copy of the Complaint, and this Memorandum and Order to each defendant’s place of employment

as identified by Plaintiff.If a defendant fails to sign and return the Waiver of Service of Summons

(Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take

appropriate steps to effect formal service on that defendant, and the Court will require that

defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of

Civil Procedure.

Service shall not be made on Defendants Unknown Party (Nurse B), John Does

(correctional officers), and Jane Doe (nurse) until Plaintiff has identified them by name in a

properly filed amended complaint.Plaintiff is ADVISEDthat it ishis responsibility to provide the

Court with the names and service addresses for these individuals.

With respect to a defendant who no longer can be found at the work address provided by

Plaintiff, the employer shall furnish the Clerk with thatdefendant’s current work address, or, if not

known, his or her last-known address. This information shall be used only for sending the forms

as directed above or for formally effecting service. Any documentation of the address shall be

retained only by the Clerk. Address information shall not be maintained in the court file or

disclosed by the Clerk.

Defendants are ORDERED to timely file an appropriate responsive pleading to the

Complaint and shall not waive filing a reply pursuant to 42U.S.C. § 1997e(g).

IT IS FURTHER ORDERED that this entire matter shall be REFERRED to a

UnitedStates Magistrate Judge for disposition, pursuant to Local Rule 72.2(b)(3) and 28U.S.C.

§636(c),if all parties consent to such a referral.

If judgment is rendered against Plaintiff, and the judgment includes the payment of costs

under Section 1915, Plaintiff will be required to pay the full amount of the costs, despite the fact

that his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).

Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was

incurred at the time the action was filed, thus the filing fee of $350.00 remains due and payable,

regardless of whether Plaintiff files a Complaint. See 28 U.S.C. § 1915(b)(1).

Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of

Court and each opposing party informed of any change in his address; the Court will not

independently investigate his whereabouts. This shall be done in writing and not later than 7 days

after a transfer or other change in address occurs. Failure to comply with this order will cause a

delay in the transmission of court documents and may result in dismissal of this action for want of

prosecution. See FED. R. Civ. P. 41(b).

IT IS SO ORDERED.

DATED: March 18, 2019

NANCY J. ROSENSTENGEL

United States District Judge

1]

Notice to Plaintiff

The Court will take the necessary steps to notify the appropriate defendantsof thislawsuit

and serve them with a copy of your complaint. After service has been achieved, the defendants

will enter their appearance and file an Answer to the complaint. It will likely take at least60 days

from the date of this Order to receive the defendants’ Answers, but it is entirely possible that it

will take 90 days or more. When all of the defendants have filed Answers, the Court will enter a

Scheduling Order containing important information on deadlines, discovery, and procedures.

Plaintiff is advised to wait until counsel has appeared for the defendants before filing any motions,

in order to give the 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.