Graham v. Carter

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DARCEL GRAHAM,

Plaintiff,

v. CAUSE NO. 3:19-CV-258 DRL

ITODO et al.,

Defendants.

OPINION AND ORDER

Darcel Graham, a prisoner without a lawyer, is proceeding in this case against six

defendants on four claims. ECF 6. “[A]gainst Sgt. Itodo, Sgt. J. Piggot, Ofc. Maldonado, and

Officer B. Rei in their individual capacities for compensatory and punitive damages for using

excessive force against him when they snatched him from the ground and forced him into a

holding cell on December 29, 2017, in violation of the Eighth Amendment[.]” Id. at 10.

“[A]gainst Sgt. Itodo, Sgt. J. Piggot, Ofc. Maldonado, and Officer B. Rei in their individual

capacities for compensatory and punitive damages for being deliberate indifferent to

Graham’s need for medical attention following his fall on December 29, 2017, in violation of

the Eighth Amendment[.]” Id. “[A]gainst Sgt. Tustison in his individual capacity for

compensatory and punitive damages on a claim he used excessive force against Graham on

June 24, 2018, in violation of the Eighth Amendment[.]” Id. “[A]gainst Sgt. B. Zimmerman in

his individual capacity for compensatory and punitive damages on a claim he failed to

intervene in Sgt. Tustison’s use of excessive force against Graham on June 24, 2018, in

violation of the Eighth Amendment[.]” Id. The defendants filed a summary judgment motion.

ECF 60. Mr. Graham filed a response, and the defendants filed a reply. ECF 64, 65. The

summary judgment motion is ripe for ruling.

Pursuant to Fed. R. Civ. P. 56(a), summary judgment is appropriate “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.” The party seeking summary judgment “bears the initial

responsibility of informing the district court of the basis for its motion and identifying”

the evidence that “demonstrate[s] the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Substantive law determines which facts are

material; that is, which facts might affect the outcome of the suit under the governing

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In ruling on a summary judgment motion, the court must construe all facts in the

light most favorable to the non-moving party and draw all reasonable inferences in that

party’s favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). The court will not “make

credibility determinations, weigh the evidence, or decide which inferences to draw from

the facts; these are jobs for a factfinder.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).

Summary judgment is not a substitute for a trial on the merits or a vehicle for resolving

factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Instead,

the court’s sole task in ruling on a motion for summary judgment is “to decide, based on

the evidence of record, whether there is any material dispute of fact that requires a trial.”

Payne, 337 F.3d at 770. If a reasonable factfinder could find in favor of the nonmoving

party, summary judgment may not be granted. Id.

FACTS

Mr. Graham is proceeding on two claims relating to an incident that occurred on

December 29, 2017, and on two claims relating to an incident that occurred on June 24,

2018. Each incident will be addressed in turn.

A. December 29, 2017 Incident.

Around 4:30 a.m. on December 29, 2017, Mr. Graham was being escorted to a cell

house by Officer Rei. ECF 60-6 at 8-10. Sgt. Itodo, Sgt. Piggot, and Ofc. Maldonado were

present escorting other prisoners in the same area. Id. at 9-10. While Mr. Graham was

being escorted outside, he slipped on ice and fell on the sidewalk. Id. at 10. Mr. Graham

immediately began to yell for help and ask for medical attention. Id. at 11. Mr. Graham

was handcuffed behind his back at the time of the fall and landed on his right side. Id.

Immediately after falling, Mr. Graham felt pain on his right side. Id. Mr. Graham

estimates he remained on the ground between four to ten minutes. Id. at 13. He asked the

officers not to touch him because he was in pain, felt numb, and wanted medical

attention. Id. Eventually, a sergeant directed the officers to pick up Mr. Graham. Id. at 13-

14. At this point, some officers “snatched” Mr. Graham up from the ground by forcibly

grabbing and moving him. Id. at 13. The officers then carried Mr. Graham inside and

placed him in a holding cell. Id. at 14.

Mr. Graham remained in the holding cell until the next shift count, which occurred

at approximately 5:00 a.m. or 5:30 a.m. Id. at 14-15. Around 5:30 a.m., Sgt. Itodo helped

Mr. Graham walk back to a holding cell near the officers’ station so he could speak to a

lieutenant as soon as he arrived with the next shift. Id. at 14-16. Sgt. Itodo directed another

officer to get Mr. Graham a bag of ice, which Mr. Graham kept on his hip. Id. at 16.

Mr. Graham saw medical at approximately 9:00 a.m., when the next shift began.

Id. at 15. Mr. Graham saw a nurse, who noted he had hit his right shoulder and hip when

he fell. Id. at 24-25; ECF 60-5 at 3-4. The nurse diagnosed Mr. Graham with a contusion

on his right hip with a small raised area, and a contusion on his right shoulder with

redness and scratches. Id. The nurse instructed Mr. Graham to ice the affected areas and

gave him Tylenol to take as needed for five days. ECF 60-6 at 17, 24-25; ECF 60-5 at 4. On

later occasions, Mr. Graham was given Pamelor, Mobic, and Toradol injections to treat

his injuries. ECF 60-6 at 17-19. Because neither party disputes these facts, the court accepts

them as undisputed.

1. Excessive force claim.

Mr. Graham is proceeding against Sgt. Itodo, Sgt. Piggot, Ofc. Maldonado, and

Officer Rei “for using excessive force against him when they snatched him from the

ground and forced him into a holding cell[.]” ECF 6 at 10. The Eighth Amendment

prohibits the “unnecessary and wanton infliction of pain” on prisoners. Whitley v. Albers,

475 U.S. 312, 319 (1986). To survive summary judgment, a plaintiff must put forth

evidence that “support[s] a reliable inference of wantonness in the infliction of pain.” Id.

at 322. The core requirement for an excessive force claim is that the defendant “used force

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

to cause harm.” Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir. 2009). In determining

whether the intent was malicious, relevant factors include how much force was needed

versus how much was actually used; the extent of injury inflicted; whether the force was

needed because of a risk to someone’s safety; and whether the officers made efforts to

limit the severity of the force. McCottrell v. White, 933 F.3d 651, 663 (7th Cir. 2019).

Here, Mr. Graham attests only that the defendants “snatched” him off the ground

and “forced” him into a holding cell after he fell down outside and was unable to walk

on his own. See ECF 64-2 at 3. When asked to explain what he meant by “snatching” him

off the ground, Mr. Graham explained “to forcefully grab me and move me.” ECF 60-6 at

13. Mr. Graham provides no details about the level of force used by the defendants by

which a reasonable jury could conclude the defendants intended to cause him harm.

Moreover, Mr. Graham offers no evidence the defendants’ use of force caused any injury,

as he brings no evidence he suffered any injury beyond the injuries he sustained from

falling on the ice. Thus, Mr. Graham has not offered sufficient evidence by which a

reasonable jury could conclude the defendants used force maliciously and sadistically to

cause him harm. Summary judgment is thus warranted in favor of the defendants on this

claim.

2. Deliberate indifference claim.

Next, Mr. Graham is proceeding against Sgt. Itodo, Sgt. Piggot, Ofc. Maldonado,

and Officer Rei “for being deliberate indifferent to Graham’s need for medical attention

following his fall on December 29, 2017, in violation of the Eighth Amendment[.]” ECF 6 at

10. To establish liability under the Eighth Amendment, a prisoner must show: (1) his

medical need was objectively serious; and (2) the defendants acted with deliberate

indifference to his medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate

indifference is a high standard, and is “something approaching a total unconcern for a

prisoner’s welfare in the face of serious risks,” or a “conscious, culpable refusal” to

prevent harm. Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992). “[C]onduct is deliberately

indifferent when the official has acted in an intentional or criminally reckless manner, i.e.,

the defendant must have known that the plaintiff was at serious risk of being harmed and

decided not to do anything to prevent that harm from occurring even though he could

have easily done so.” Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005).

Here, no reasonable jury could conclude the defendants were deliberately

indifferent to Mr. Graham’s medical need. The undisputed evidence shows they

responded reasonably to his need. Specifically, it is undisputed Mr. Graham fell at

approximately 4:30 a.m., the defendants transported him to a holding cell shortly after

his fall, the defendants provided him ice for his hip around 5:30 a.m., and the defendants

took him to see a nurse “when the next shift began” around 9:00 a.m. See ECF 64-1 at 3-4;

ECF 60-6 at 15-17. The defendants’ conduct of transporting Mr. Graham to a safe location

and providing him ice for his injuries shows they did not act with “total unconcern” for

his welfare. Moreover, to the extent Mr. Graham argues the defendants delayed in

sending him to a nurse, there is no evidence Mr. Graham needed to see a nurse

immediately after his fall. Additionally, Mr. Graham has not provided any verifying

medical evidence that any delay in sending him to see a nurse had a detrimental effect

on his condition, as the nurse only diagnosed him as having bruises on his hip and

shoulder and treated him with ice and Tylenol. See ECF 60-5 at 4; Langston v. Peters, 100

F.3d 1235, 1240-41 (7th Cir. 1996) (“[a]n inmate who complains that delay in medical

treatment rose to a constitutional violation must place verifying medical evidence in the

record to establish the detrimental effect of delay in medical treatment to succeed”). Thus,

based on the record before this court, no reasonable jury could conclude the defendants’

conduct evidenced a total unconcern for Mr. Graham’s welfare in the face of serious risks.

B. June 24, 2018 Incident.

On June 24, 2018, Mr. Graham arrived late for chow hall, proceeded to a checkpoint

where Sgt. Tustison and Sgt. Zimmerman were present, and asked Sgt. Tustison for a

food tray. ECF 60-6 at 21-23. Sgt. Tustison ordered Mr. Graham to return to his housing

unit. ECF 60-1 at 2; ECF 60-6 at 26. At this point, the accounts from the parties differ.

Mr. Graham attests to the following facts: After Sgt. Tustison ordered Mr. Graham

to return to his housing unit, Mr. Graham requested to speak to a lieutenant. ECF 64-2 at

10. At that point, Sgt. Tustison ordered Mr. Graham to cuff up. Id. Mr. Graham gave Sgt.

Tustison his right hand while holding his cane with his left hand as to cuff up in front. Id.

Sgt. Tustison went to swing Mr. Graham’s right arm behind his back, at which time Mr.

Graham made him aware he used a cane and his shoulder was not mobile in that

direction. Id. Sgt. Tustison then placed Mr. Graham in a headlock and choked him until

he blacked out. Id. When Mr. Graham came to, he was cuffed behind his back and being

forcefully escorted by Sgt. Tustison to the guard hall, which caused him major pain. Id.

When they arrived at the guard hall, Sgt. Tustison aggressively pushed Mr. Graham’s

shoulder against the guard hall doors. Id.

Sgt. Tustison admits he used force on Mr. Graham, but attests he used only enough

force as was necessary to restore order and to protect his safety and Sgt. Zimmerman’s.

ECF 60-1 at 3. Specifically, Sgt. Tustison attests that Mr. Graham refused the order to

return to his housing unit, began angrily shouting at the sergeants, and refused orders to

cuff up. Id. at 2. Sgt. Tustison attempted to place Mr. Graham in physical restraints, but

Mr. Graham pulled his hand away and resisted the restraints. Id. Mr. Graham then raised

his other hand, which was holding a cane, toward Sgt. Tustison aggressively. Id. Sgt.

Tustison perceived Mr. Graham intended to hit him with the cane and used force against

Mr. Graham by pinning him against a counter and applying restraints. Id. at 2-3. Once

restrained, Mr. Graham was escorted to the custody hall and placed in a holding cell

without further incident. Id. at 3.

1. Excessive force claim against Sgt. Tustison.

Mr. Graham is proceeding against Sgt. Tustison “on a claim he used excessive force

against [Mr.] Graham on June 24, 2018, in violation of the Eighth Amendment[.]” ECF 6 at 10.

The defendants argue summary judgment is warranted in favor of Sgt. Tustison because any

force he used against Mr. Graham was applied in a good faith effort to restore discipline. ECF

61 at 14-15. However, there are disputed material facts whether Sgt. Tustison’s use of force

was a good faith effort to restore discipline. Specifically, Mr. Graham attests he did not resist

Sgt. Tustison’s attempt to restraint him or raise his cane in a threatening manner, but only

tried to make Sgt. Tustison aware he used a cane and could not be cuffed up behind his back.

Moreover, Mr. Graham attests Sgt. Tustison responded by placing him in a headlock and

choking him until he was unconscious. The contrary attestations between Mr. Graham and

the defendants create a credibility dispute. See Payne, 337 F.3d at 770 (the court will not

“make credibility determinations” or “weigh the evidence” in ruling on a summary

judgment motion). Construing these facts in Mr. Graham’s favor, a reasonable jury could

conclude Sgt. Tustison used excessive force against Mr. Graham. Thus, Sgt. Tustison is

not entitled to summary judgment.

The defendants also argue they are entitled to qualified immunity because their

actions were not clearly unconstitutional under clearly established law. ECF 61 at 19-21.

However, this argument fails as to Sgt. Tustison because there are disputed material facts

regarding the amount of force Sgt. Tustison used against Mr. Graham. See Walker v.

Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002) (recognizing that disputed material facts

regarding the elements of a constitutional claim precludes dismissal based on qualified

immunity). Moreover, crediting Mr. Graham’s version of events, it would be clear to a

reasonable officer that placing an inmate in a headlock when he was not actively resisting

and choking him until he was unconscious was unlawful. See Saucier v. Katz, 533 U.S. 194,

202 (2001) (“The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted”). Thus, Sgt. Tustison cannot avoid trial on

grounds of qualified immunity.

2. Failure to intervene claim against Sgt. Zimmerman.

Mr. Graham is proceeding against Sgt. Zimmerman on “a claim he failed to intervene

in Sgt. Tustison’s use of excessive force against Graham on June 24, 2018[.]” ECF 6 at 10. State

actors “who have a realistic opportunity to step forward and prevent a fellow [state actor]

from violating a plaintiff’s right through the use of excessive force but fail to do so” may

be held liable for failure to intervene. Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000)

(citing Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994)). A bystander officer may be held

liable for the excessive force of another officer if the bystander officer: “(1) had reason to

know that a fellow officer was using excessive force or committing a constitutional

violation, and (2) had a realistic opportunity to intervene to prevent the act from

occurring.” Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009).

Sgt. Zimmerman argues he is entitled to summary judgment because Sgt. Tustison

did not use excessive force against Mr. Graham. ECF 61 at 16-17. However, as discussed

above, there are disputed material facts whether Sgt. Tustison used excessive force against

Mr. Graham. Moreover, Sgt. Zimmerman and Sgt. Tustison both attest that Sgt. Zimmerman

was present during Sgt. Tustison’s use of force and assisted Sgt. Tustison in restraining Mr.

Graham. ECF 60-1, 60-2. Thus, because a reasonable jury could conclude Sgt. Tustison used

excessive force on Mr. Graham, it could likewise conclude Sgt. Zimmerman had reason to

know of Sgt. Tustison’s use of force and had a reasonable opportunity to prevent the act from

occurring. Thus, Sgt. Zimmerman is not entitled to summary judgment. Lastly, for the same

reasons discussed above, Sgt. Zimmerman cannot avoid trial on qualified immunity grounds.

For these reasons, the court:

(1) GRANTS the motion for summary judgment (ECF 60) with respect to Darcel

Graham’s claims against Sgt. Moses Itodo, Sgt. J. Piggot, Ofc. Maldonado, and Officer B.

Rei;

(2) DENIES the motion for summary judgment (ECF 60) with respect to Darcel

Graham’s claims against Sgt. Matthew Tustison and Sgt. Blake Zimmerman; and

(3) REMINDS the parties this case is now proceeding only on: (1) Darcel Graham’s

excessive-force claim against Sgt. Matthew Tustison, in which he alleged Sgt. Tustison

used excessive force against him on June 24, 2018, by placing him in a headlock and

choking him until he was unconscious despite the fact he was not attempting to

physically resist; and (2) Darcel Graham’s failure-to-intervene claim against Sgt. Blake

Zimmerman, in which he alleged Sgt. Zimmerman failed to intervene during Sgt.

Tustison’s use of excessive force on June 24, 2018.

SO ORDERED.

November 12, 2021 s/ Damon R. Leichty

Judge, United States District Court