# Daugherty v. Doe

> District Court, S.D. Illinois · July 7, 2021

URL: https://www.frixlaw.com/law-library/cases/10153856

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** July 7, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

TERRANCE DAUGHERTY,
#R-01171

Plaintiff,
Case No. 17-cv-00809-SPM
v.

MICHAEL DURBIN and MICHAEL
PADILLA,

Defendants.

MEMORANDUM AND ORDER

McGLYNN, District Judge:
Pending before the Court is a Motion for Summary Judgment (Doc. 135) filed by
Defendants Michael Durbin (“Durbin”) and Michael Padilla (“Padilla”). For the reason’s
set forth below, the Court denies the Motion for Summary Judgment.
PROCEDURAL HISTORY
On July 12, 2017, plaintiff Terrance Daugherty (“Daugherty”) filed his
complaint pursuant to 42 U.S.C. § 1983 in the U.S. District Court for the Central District
of Illinois (Doc 1). On July 18, 2017, Daugherty’s case was transferred to this district
via text order (Doc. 6). Venue for federal civil rights actions brought under 42 U.S.C. §
1983 is governed by 28 U.S.C. § 1391(b), which states they may only be brought in: (1)
the judicial district where any defendant resides; (2) a judicial district in which a
substantial part of the events or omissions giving rise to the incident occurred; or, (3) a
judicial district in which defendant may be found, if there is no district in which the
action may otherwise be brought. Because the allegations contained in the complaint
occurred at Big Muddy Correctional Center (“Big Muddy”) and the defendants work at
Big Muddy, which is located in the Southern District, the interests of justice supported
transfer and this venue is clearly appropriate.
On September 25, 2017, a merit review was conducted pursuant to 28 U.S.C. §
1915A (Doc. 14). At that time, the Court determined that Daugherty could proceed on

the following two counts: (1) On June 23, 2015, John Doe 1 used excessive force on
plaintiff by nearly throwing him over a guard rail, kneeing his back, forcing him to walk
in a degrading and uncomfortable position, and dragging his face on the concrete
without justification, in violation of the Eighth Amendment; and, (2) On June 23, 2015,
John Doe 2 used excessive force on plaintiff by forcing him to walk in a degrading and
uncomfortable position, kneeing his back, and dragging his face on the concrete without

justification, in violation of the Eighth Amendment (Id.).
On October 4, 2017, Lieutenant Michael A. Durbin (“Durbin”) was substituted in
place of John Doe 1 and Officer Michael E. Padilla (“Padilla”) was substituted in place
of John Doe 2 (Doc. 18). On June 18, 2018, an amended complaint was filed against
Durbin and Padilla, asserting the excessive force claim from June 23, 2015, as well as
state law claims for assault and battery (Doc. 75).
On October 26, 2020, Durbin and Padilla filed their motion for summary

judgment asserting affirmative defense of qualified immunity with respect to the
excessive force claim, and the defenses of sovereign immunity and public official
immunity regarding the state claims of assault and battery (Doc. 136). On November
30, 2020, Daugherty filed his response, arguing that there were genuine disputes of
material facts and that Durbin and Padilla were not entitled to any affirmative defense
(Doc. 137). On December 14, 2020, Durbin and Padilla filed their reply, focusing on the
testimony of Daugherty’s cellmate, Felton Williams (“Williams”), and contesting that
there were any undisputed material facts (Doc. 138).
STATEMENT OF FACTS1
On June 23, 2015, Daugherty was incarcerated in the Illinois Department of

Corrections and was an inmate at Big Muddy (Doc. 136, ¶ 1). Daugherty is a 38 year old
male with mental health diagnoses that can cause depression, anxiety and
hallucinations (Doc. 137, ¶20). On June 23, 2015, he was involved in a “brutal” fight
with his cellmate, Felton Williams2 (Id., ¶ 2). Daugherty advised the fight was 5-6
minutes and ended because they “fought so brutally they were exhausted” (Doc. 136-1,
p. 16). Following the fight, Daugherty was “extremely hurt” and his lip was split open

and bleeding badly; his arms were pretty threw out; his legs were sore from wrestling;
his knuckles were hurting; and, his face and head were pounding (Id., pp. 15-16). The
wing officer responded to the panic button, assessed the situation, called a 10-10, and
prepared a report noting bleeding injuries to Daugherty and indicating that he had to
push himself against the wall to stand (Doc. 136, ¶ 4).
Padilla has been a correctional officer since 2014 and responded to the 10-10 call
and waited for Durbin to arrive (Doc. 136, ¶ 5). Durbin gave Daugherty and his cellmate

Williams three direct orders to cuff up because they were going to segregation (Doc. 136,
¶ 6). Daugherty did not follow the first or second order and wanted Durbin to come into

1 In an effort to exclude immaterial and irrelevant facts, this Court has prepared its own Statement of
Facts based upon the briefs and exhibits provided by the parties herein. Plaintiff has attempted to
articulate statements made by Felton Williams as uncontested facts; however, many of those statements
directly contradict Daugherty’s own testimony and have minimal evidentiary support or corroboration.
2 Daugherty testified via deposition on June 19, 2019, at which time he stated, “After a brutal fight
between me and my cellie …”. (Doc. 136-1, p. 14).
the cell (Doc. 136, ¶¶ 8-9). Daugherty started to comply, but he was pulled out of his cell
and made to face the wall before being handcuffed (Doc. 136, ¶ 9). Daugherty “tried to
pull away” and “jerked away from him [Durbin],” but was “pulled back from the chains”
of the handcuffs (Doc. 136, ¶10). Daugherty was made to stand erect while his head was
pushed down, and he was walked down the stairs (Id.).

Daugherty was escorted out of the cell block by Durbin and Padilla (Id.). He
collapsed a few times on the walk and had to be brought to standing position before
walking again (Doc. 136, ¶11). When Daugherty arrived at the infirmary, he was
examined by nurse Donna Durbin (Doc. 136, ¶12). Nurse Durbin writes what she is told
by the inmate, and in this case wrote, “My cellie hit me” (Doc. 136, ¶13). Nurse Durbin
wrote that Daugherty had a laceration to his upper lip and abrasions to the back of his

left arm, to the middle of back, to the right arm and to the upper elbow (Doc. 136, ¶14).
Daugherty refused to have his lip repaired by Dr. Larson (Id.). The doctor indicated he
reviewed the report and requested Daugherty follow up as needed, but no further
treatment was received (Doc. 136, ¶15). Daugherty was taken to a segregation cell after
the infirmary (Doc. 136, ¶16).
LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citation omitted). “A
genuine dispute as to any material fact exists if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Kvapil v. Chippewa Cty., 752 F.3d
708, 712 (7th Cir. 2014) (citation and internal quotation marks omitted). In deciding
whether a dispute exists, the Court must “construe all facts and reasonable inferences

in the light most favorable to the non-moving party.” Nat'l Am. Ins. Co. v. Artisan &
Truckers Cas. Co., 796 F.3d 717, 723 (7th Cir. 2015) (citation omitted).
Under Rule 56, the movant has the initial burden of establishing that a trial is
not necessary. Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 627 (7th Cir. 2014).
“That burden may be discharged by showing ... that there is an absence of evidence to
support the nonmoving party's case.” Id. (citation and internal quotation marks

omitted). If the movant carries this burden, the nonmovant “must make a showing
sufficient to establish the existence of an element essential to that party's case.” Id.
(citation and internal quotation marks omitted). The nonmovant “must go beyond the
pleadings (e.g., produce affidavits, depositions, answers to interrogatories, or
admissions on file) to demonstrate that there is evidence upon which a jury could
properly proceed to find a verdict in [their] favor.” Id. (citation and internal quotation
marks omitted). “The existence of a mere scintilla of evidence, however, is insufficient

to fulfill this requirement.” Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008).
“[S]peculation and conjecture” cannot defeat a motion for summary judgment. Cooney v.
Casady, 735 F.3d 514, 519 (7th Cir. 2013). In addition, not all factual disputes will
preclude the entry of summary judgment, only those that “could affect the outcome of
the suit under governing law.” Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001)
(citation omitted).
In deciding the motion, the Court cannot weigh conflicting evidence, assess the
credibility of the witnesses, choose between competing inferences or determine the
ultimate truth 0of the matter, as these are functions of the jury. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986); McCottrell v. White, 933 F.3d 651, 657 (7th Cir.
2019). Instead, the Court's sole function is “to determine whether there is a genuine
issue for trial.” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). It must view all the
evidence in the record in the light most favorable to the non-moving party and resolve
all factual disputes in favor of the non-moving party. McCottrell, 933 F.3d at 658.
ANALYSIS

In this case, the motion for summary judgment focuses on whether any force was
used against Daugherty, and if so, whether that force was considered excessive (Doc.
135). Daugherty claims that after a fight with his cellmate, he was aggressively escorted
out of his cell and beaten until handcuffed, almost thrown over a guard rail outside his
cell, aggressively escorted (dragged on concrete) out of the building in a degrading and
uncomfortable manner, as well as being punched, kicked and kneed multiple times by
Durbin and Padilla (Doc. 137). In support of his contentions, Daugherty relies upon his

own deposition testimony, as well as that of his former “cellie”, Felton Williams (Id.). To
the contrary, defendants claim Daugherty was injured in his fight with his cellmate
before being escorted and assisted from his housing unit to the infirmary (Doc. 135).
They claim all of Daugherty’s injuries were sustained in the fight, and they deny using
any force against him (Id.).
It is undisputed that Daugherty and Williams engaged in a fight on June 23,
2015. It is further undisputed that Daugherty sustained injuries in the fight – the wing
officer saw Daugherty standing at the door bleeding and noted in his report that
Daugherty indicated he had a fight with William (Doc. 137-4). Daugherty himself
testified that he was “extremely hurt” and that his “lip was split open”, his arms were

“pretty threw out” and his “legs were pretty sore from wrestling” (Doc. 136-1, pp. 15-16).
Daugherty even disobeyed Durbin’s first two direct orders to “cuff up”, but that is when
the aftermath of the fight diverges into two distinct theories (Doc. 136-1, pp. 35, 36). In
both scenarios, Daugherty was escorted by Durbin and Padilla to the infirmary, but the
how remains disputed and remains a question of fact for jury to decide.
Once at the infirmary, Nurse Durbin noted a laceration to Daugherty’s upper lip,

and abrasions to the back of his left arm, to the middle of his back and to his upper arm.
However, she was not present at the fight, and other than noting that Daugherty said,
“My cellie hit me”, she does not know if all of the injuries were from the fight.
Furthermore, even if there were no discernable injuries other than what Daugherty
received in the fight, that is not dispositive to the question of whether excessive force
was used. In fact, the Supreme Court, holds that pain, not injury, is the barometer by
which we measure claims of excessive force. Hudson v. McMillian, 503 U.S. 1, 9 (1992).

I. Excessive Force
The Eighth Amendment does not forbid every use of force against a prisoner; it
only forbids the wanton infliction of pain. Whitley v. Albers, 475 U.S. 312, 319-320
(1986). Use of force is constitutional if it is part of a good-faith effort to restore discipline.
Id. In fact, once accused of using excessive physical force in violation of the cruel and
unusual punishment clause, the core judicial inquiry is whether the force was applied
in a good faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Whitley, 475 U.S. at 327).
According to Webster’s Dictionary, maliciously means having or showing a desire to
cause harm to someone, while sadistically means taking pleasure in the infliction of

pain.3
Corrections officers must balance the need “to maintain or restore discipline”
through force against the risk of injury to inmates and other officers. Whitley v. Albers,
475 U.S. 315, 320 (1986). Both situations may require prison officials to act quickly and
decisively. Id. Likewise, both implicate the principle that “[p]rison administrators ...
should be accorded wide-ranging deference in the adoption and execution of policies and

practices that in their judgment are needed to preserve internal order and discipline
and to maintain institutional security.” Whitley, 475 U.S. at 321–322, 106 S.Ct., at
1085(quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)).
The determination that force was excessive depends upon the circumstances.
Richman v. Sheahan, 512 F.3d 876, 883 (7th Cir. 2008). Use of force is contrary to the
Eighth Amendment if it is excessive under objective standards of reasonableness;
however, that alone is not enough. Saucier, 533 U.S. at 202. Indeed, not every push or

shove, even if it later may seem unnecessary in the peace of a judge’s chambers, violates
the Eighth Amendment. Graham v. Connor, 490 U.S. 386 (1989). Determining whether
[an officer] was acting in good faith depends on whether they reasonably felt that their
safety or the safety of other inmates was threatened, whether there was a genuine need

3 See www.merriam-webster.com/dictionary
to use force and whether the amount of force used corresponded to that need. See Rice
v. Correctional Med. Servs., 675 F.3d 650, 667-668 (7th Cir. 2012).
In this case, Daugherty admittedly refused to comply with two orders to “cuff up”;
however, he was ultimately handcuffed before being escorted to the infirmary. Once
Daugherty was in handcuffs, is it reasonable for an officer to believe that his safety or

that of other inmates is still threatened? Assuming the facts in Daugherty’s favor, this
Court believes there are questions of fact for a jury to determine whether force was used
by the officers, and whether said force was reasonable or excessive under the
circumstances.
II. Qualified Immunity
Defendants assert that if they used excessive force, they are entitled to the

defense of Qualified Immunity (Doc. 136, pp. 9-10). The inquiry as to whether officers
are entitled to qualified immunity for the use of excessive force is distinct from the
inquiry on the merits of the excessive force claim. Saucier v. Katz, 533 U.S. 194 (2001).
The threshold inquiry a court must undertake in a qualified immunity analysis
is whether plaintiff’s allegations, if true, establish a constitutional violation. Hope v.
Pelzer, 536 U.S. 730, 736 (2002). In this case, if Daugherty’s allegations are true which
is presumed at the summary judgment stage, then the Court must determine if the right

to be free from cruel and unusual punishment was clearly established. Saucier, 533 U.S.
194, 201 (2001). Qualified immunity applies unless the official’s conduct violated such a
right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Thus, we can dismiss the case
on summary judgment only if we find that the right that Durbin and Padilla allegedly
violated was not clearly established at the time of the purported misconduct. See
v. McGowan, 957 F.2d 345, 350 (7th Cir.1992). To the contrary, the right to be free from
cruel and unusual punishment is guaranteed under the Eighth Amendment. As such,
questions of fact remain making summary judgment inappropriate at this time.
III. State Claims and Immunities
In addition to his federal excessive force claims, Daugherty has asserted state law

claims of assault (Count II) and battery (Count III) (Doc. 76). Durbin and Padilla argue
they are immune from these claims under relevant Illinois immunities law, including
state-law sovereign immunity and public official immunity (Doc. 136). For the following
reasons, the court denies both of these arguments as well.
A. State-Law Sovereign Immunity
In general, Illinois is protected against civil suits in federal court by two relevant

doctrines, both of which are referred to as “sovereign immunity”. Benning v. Board of
Regents of Regency Universities, 928 F.2d 775, 777 (7th Cir. 1991). The sovereign
immunity statute protects the State against being “made a defendant or party in any
court”. 745 ILCS 5/1. Because naming state employees as defendants would be too
simple an evasion of the statute, a substantial body of Illinois case law addresses when
and under what circumstances the immunity statute applies to claims against state
employees. See Benning, 928 F.2d at 779–80.

However, there is an important exception to sovereign immunity that obviates
the need to go through the circumstances when the immunity statute applies. Murphy
v. Smith, 844 F.3d 653, 658 (7th Cir. 2016). Specifically, if the plaintiff alleges that state
officials or employees violated “statutory or constitutional law”, sovereign immunity
offers no protections. Healy v. Vaupel, 549 N.E.2d 1240, 1247 (Ill. 1990).
In Murphy, plaintiff was an inmate at Vandalia CC when he was hit in the face
while being escorted to segregation. 844 F.3d 653 (7th Cir. 2016). Murphy sued under
42 U.S.C. §1983 and also alleged state-law theories. Id. The defendant correctional
officers argued that state-law sovereign immunity barred the state-law claims. Id.
Murphy alleged and proved that defendants violated the U.S. Constitution and also

proved the Illinois criminal offense of aggravated battery. Id. The Seventh Circuit held
that sovereign immunity did not bar the state law claims because Murphy proved
defendants acted “in violation of statutory or constitutional law.” Id.
Similarly, in this case, Daugherty has alleged violations of the U.S. Constitution,
specifically the Eighth Amendment, along with the Illinois claims of assault and battery
(Doc. 76). Whether defendants’ conduct was in violation of the Eighth Amendment

remains a jury question, and as such, defendants are not entitled to summary judgment
at this time.
B. Public Official Immunity
Public official immunity is a common law doctrine that dictates public officials
are immune from individual liability for “the performance of discretionary duties
performed in good faith” and “unique to the particular public office.” Currie v. Lao, 592
N.E.2d 977, 984 (Ill. 1992); Kinzer v. City of Chi., 539 N.E.2d 1216, 1220 (Ill. 1989).

Defendants argue that they are entitled to public official immunity on the state-law tort
claims because they were performing discretionary acts that are authorized by law and
that Daugherty's allegations fail to rise beyond the scope of public official immunity
(Doc. 136). The Court rejects Defendants’ argument. The evidence before the Court
establishes issues of material fact as to whether they performed their duties in good
faith. Thus, the Court denies the motion for summary judgment based on public official
immunity
CONCLUSION
For the reasons set forth above, the Court DENIES the Motion for Summary
Judgment in its entirety.

IT IS SO ORDERED.

DATED: July 7, 2021

/s/ Stephen P. McGlynn_
STEPHEN P. McGLYNN
U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10153856. Public record. Not legal advice.