McReaken v. Illinois Department of Corrections

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

SCOTT McREAKEN and ANTHONY

TOLLIVER,

Plaintiff,

v. Case No. 21-CV-00584-SPM

NEIL KELLERMAN, LUKE HICKS,

KEITH HUBLER, BRADLEY

DEDECKER and DEREK

CLELAND,

Defendants.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

Plaintiffs Scott McReaken and Anthony Toliver, both inmates in the Illinois

Department of Corrections housed at Pinckneyville Correctional Center

(“Pinckneyville”) during the relevant times, filed this action under 42 U.S.C. § 1983

for alleged violations of their constitutional rights, occurring in separate incidents

during their stay at Pinckneyville. (Docs. 1, 49). McReaken and Toliver are

proceeding on the following claims:

Count 1: Eighth Amendment excessive force claim against Kellerman,

Hicks, Hubler, Dedecker, and Cleland for assaulting McReaken

and Toliver in the shower in separate incidents.

Count 2: Eighth Amendment claim against Kellerman, Hicks, Hubler,

Dedecker, and Cleland for denial of medical care to McReaken

and Toliver after the assaults.

Count 3: Eighth Amendment violation against Kellerman, Hicks, Hubler,

Dedecker, and Cleland for failure to intervene on behalf of

McReaken and Toliver while the assaults were occurring.

(Doc. 1).

This matter comes before the Court for consideration of a Motion for Partial

Summary Judgment and Memoranda filed in support by Defendants Neil Kellerman,

Luke Hicks, Keith Hubler, Bradley Dedecker, and Derek Cleland. (Docs. 45, 46, 52).

As to Counts 1 and 3, only Defendant Cleland moves for summary judgment against

Plaintiff Toliver, and all Defendants move for summary judgment against Plaintiff

McReaken. As to Counts 2 and 4, all Defendants move for summary judgment against

both Plaintiffs Toliver and McReaken. For the reasons set forth below, the Court

grants the motion in part and denies the motion in part.

PRELIMINARY ISSUES

Before getting to the facts of the case, the Court must first address preliminary

matters.

First, McReaken and Toliver argue that the Motion for Partial Summary

Judgment should be denied outright as a sanction against Defendants pursuant to

Federal Rule of Civil Procedure 56(h), 28 U.S.C. §1927, and the Court’s inherent

authority. (Doc. 49, pp. 31-32). Plaintiffs appear to be contending that the Motion for

Partial Summary Judgment concerning McReaken’s Eighth Amendment claims is

frivolous because Defendants failed to address McReaken’s testimony that he was

punched while handcuffed and lying in his bed.

Plaintiffs have not demonstrated that Defendants or Defense Counsel have

acted in a manner warranting sanctions. They do not point to an affidavit or

declaration submitted in bad faith (Rule 56(h)); nor have they established that

Defendants’ filing of the motion for summary judgment was done both unreasonably

and vexatiously (28 U.S.C. § 1927). See Kotsilieris v. Chalmers, 966 F. 2d 1181, 1184

(7th Cir. 1992) (Section 1927 does not provide that “any unreasonable conduct is

sanctionable”). While the Court, as discussed more fully below, will deny the Motion

as to the Eighth Amendment excessive force claim brought by McReaken, Plaintiffs

have not provided sufficient argument or evidence establishing that the arguments

made in the Motion for Partial Summary Judgment concerning the excessive force

claim were put forth in bad faith or were not warranted by existing law. See Palmer

v. McErlean, No. 89 C 8511, 1991 WL 203763, at *3 (N.D. Ill. Sept. 30, 1991) (denying

the motion for sanctions and noting that “the defendants had a good faith argument

that plaintiff’s evidence of excessive force was merely colorable and not significantly

probative so as to avoid summary judgment”). Accordingly, the request for sanctions

is DENIED.

Second, the Court must address Counts 1 and 3, as brought by Plaintiff Toliver

against Defendant Cleland. Defendants move for summary judgment as to Toliver’s

claims of excessive force and failure to intervene against Cleland only. Defendants

argue that it is undisputed that Cleland was not present during the cell extraction on

November 8, 2019, or otherwise involved in the incident with Toliver and that Toliver

admits that Cleland did nothing to him. (Doc. 46, p. 10). Plaintiffs oppose the motion

not on the merits, but on the grounds that Toliver did not bring claims of excessive

force against Cleland in the first place. (Doc. 49, p. 18, 31).

The Court agrees with Defendants, that from the basic reading of Counts 1 and 3 in

the Complaint, it appears that both Plaintiffs are proceeding with Eighth

Amendment claims against all Defendants. (See Doc. 1, p. 5). There is no indication

that Toliver intended to exclude Cleland from Counts 1 and 3. Because Toliver admits

that Cleland was not involved in the excessive force incident and that Cleland “did

nothing to him,” the Motion for Partial Summary Judgment as to Counts 1 and 3

brought by Toliver against Cleland is GRANTED. (See Doc. 46-2, p. 73-74; 49, p. 18-

19).

And finally, Plaintiffs seek to withdraw their retaliation claim as alleged in

Count 4. In response to the motion for summary judgment, Plaintiffs respond that

they withdraw their retaliation claim, but they do not cite to any particular rule

giving them the ability to simply “withdraw” a claim at this stage in the case. (Doc.

49, p. 31). Generally, an attempt to voluntarily dismiss only certain counts of a multi-

count complaint is treated as a motion to amend under Federal Rule of Civil

Procedure 15. Bibbs v. Newman, 997 F. Supp. 1174, 1177 (S.D. Ind. 1998) (citations

omitted). Additionally, when “a plaintiff withdraws a claim in response to summary

judgment, courts within this Circuit typically dismiss these claims with prejudice

because ‘it would not be fair at this point to leave open even a remote possibility that

defendants might face this claim in some other forum.’” Miller v. Madison Cnty. Bd.

of Comm’rs, No. 21-cv-02609-JMS-MJD, 2023 WL 2837867, at *13 n. 6 (S.D. Ind. Apr.

7, 2023) (quoting Bibbs, 997 F. Supp. at 1177). See also DuBose v. McHugh, No. 12-

cv-789-MJR*DGW, 2014 WL 10175999, at *2 (S.D. Ill. Jan. 10, 2014); Swartz v.

Wabash Nat’l Corp., 674 F. Supp. 2d 1051, 1057 (N.D. Ind. 2009). In keeping with

this precedent, Plaintiffs’ Complaint is deemed amended to remove Count 4, which is

DISMISSED with prejudice.

RELEVANT FACTS

On November 5, 2019, McReaken was observed with a sheet tied around his

neck and stated that he wanted to kill himself. (Doc. 49-1). As a result, McReaken

was put on crisis watch. (Id). The morning of November 7, 2019, McReaken spoke to

his mental health counselor during the daily checkup he received while on crisis

watch. (Doc. 46-1, p. 23-24). For the checkup, McReaken changed out of his smock

into a regular prison jumpsuit, was handcuffed, and taken to his appointment. (Id. at

p. 25). Kellerman, a corrections officer at Pinckneyville, retrieved McReaken from the

meeting with the mental health counselor and placed McReaken in a secured shower

to change clothes. (Id. at p. 27).

While in the secured shower, McReaken refused to change back into his smock

and refused to put on handcuffs. (Doc. 46-1, p. 27). McReaken claims and Defendants

deny that he told Kellerman that he was refusing because he had not finished

speaking with his mental health counselor. (Doc. 46-1, p. 27; Doc. 46-3, p. 19, 21).

McReaken then spit into the open chuckhole, hitting Kellerman who was on the other

side. (Doc. 46-1, p. 27, 31; Doc. 46-3, p. 23). Kellerman then locked McReaken in the

secure shower and called for backup. (Doc. 46-1, p. 31-32; Doc. 46-10).

Hicks, Dedecker, Cleland, and Hubler, all corrections personnel at

Pinckneyville as well, arrived at the shower and asked McReaken to submit to

handcuffing, but McReaken refused. (Doc. 46-1, p. 27). Cleland gave McReaken two

orders to submit to handcuffing, and McReaken refused again. (Id. at p. 33).

McReaken alleges and Defendants deny that upon entering the shower Cleland

smashed his head into the wall and placed him in a headlock while the two officers

in the cell punched, kicked, and kneed him. (Id. at p. 34). Defendants assert and

McReaken denies that when the officers entered the cell, McReaken resisted

handcuffing by keeping his arms in front of his body. (Doc. 46-6, p. 31). McReaken

alleges that he repeatedly stated that he was not resisting. (Doc. 46-1, p. 34). After

handcuffing him, Cleland and Hubler escorted McReaken back to his cell. (Doc. 46-6,

p. 32). McReaken alleges and Defendants deny that when they arrived at his cell,

officers shoved him face-first into his bed. (Doc. 46-1, p. 41). McReaken claims and

Defendants deny that Hicks and Kellerman then punched him three or four times.

(Id.).

During his interaction with Defendants, McReaken claims he heard a pop in

his ear. (Doc. 46-1, p. 34). After the interaction, McReaken alleges that he had

difficulty hearing out of his right ear, his neck was sore, and he had a bruise on his

cheek. (Id. at p. 43).1 McReaken does not recall asking any of the Defendants for

medical care after the shower incident, nor does he recall asking any of the staff on

duty during the first shift after he was placed back in his cell. (Id. at p. 44). Instead,

McReaken states that he asked the second shift for medical attention and was seen

soon after by an RN to whom he stated his complaints. (Id.) Before seeing the RN, he

1 He had a preexisting condition that significantly affected his hearing out of his right ear prior to his

interaction with Defendants. (Doc. 46-1, p. 44-45; Doc. 49 p. 15).

gave a statement for an incident report in which he alleged that he had been kicked

and punched by officers and noted pain in his ear and jaw. (Doc. 49-5). He maintains

that he complained to the RN about the sound in his ear and his sore neck. (Doc. 46-

1, p. 43). The RN noted no injuries to McReaken upon assessment. (Doc. 46-8). A few

hours later, McReaken was seen again by an LPN who noted no symptoms of distress.

(Doc. 46-9).

On October 19, 2019, another inmate, Toliver, was placed on crisis watch

during which he attempted suicide. (Doc. 46-2, p. 18-20). On November 7, 2019, after

the stated incident with McReaken, Toliver alleges that he was assaulted by

Dedecker, Hicks, Hubler, and Kellerman after taking a shower in the secured shower.

(Docs. 1, p. 4; Doc. 46-2, p. 31-36). After being removed from the shower, Toliver was

placed back in his cell. (Doc. 49, p. 7). Toliver did not ask Cleland, Dedecker, Hicks,

Hubler, or Kellerman to be seen by the medical staff, nor did he ask any of the other

staff on the first shift for medical assistance. (Doc. 46-2; Doc. 46-5; Doc. 49). Toliver

claims that he waited until the second shift because he did not want to ask the

corrections officers who had been involved in the incident for care. (Doc. 46-2, p. 53-

54; Doc. 49, p. 7). After the second shift arrived at approximately 3:00 PM, Toliver

asked to be seen by medical, and was seen soon after by both mental health and by

health care services. (Doc. 49-8; Doc. 49-10). Roughly two hours later, Toliver was

examined by a registered nurse who noted swelling to Toliver’s left wrist and pinky

as well as some abrasions to his lip and knees. (Doc. 46-11; Doc. 46-12). Upon

consultation, Dr. Myers, a doctor on staff, recommended Toliver to the Pinckneyville

Community Hospital for further assessment. (Id.). At approximately 7:00 PM, Toliver

was seen by the hospital physician Dr. Beusse, and had X-rays taken indicating a

mild nasal fracture, a wrist fracture, and pinky fracture. (Doc. 49-10; Doc. 49-11).

Toliver was given an ace bandage for his arm and was prescribed medication for any

residual pain. (Id.). Later that evening, Toliver was released back to the Health Care

Unit where he was treated by the RN as prescribed by Dr. Beusse. (Doc. 49-10; Doc.

49-11; Doc. 49-12).

LEGAL STANDARD

Summary judgment is the moment in a lawsuit where a party lays its

proverbial cards on the table, showing what evidence it possesses to convince a trier

of fact to agree with its version of events. Steen v. Myers, 486 F.3d 1017, 1022 (7th

Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir.

2005) (other citations omitted)). Summary judgment is only 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.” Spurling v. C & M Fine Pack, Inc., 739 F.3d

1055, 1060 (7th Cir. 2014) (quoting FED. R. CIV. P. 56(a)). That “burden on the moving

party may be discharged by ‘showing’ – that is, pointing out to the district court –

that there is an absence of evidence to support the nonmoving party’s case.” Celotex

Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has set forth the

basis for summary judgment, the burden then shifts to the nonmoving party who

must go beyond mere conclusory allegations and offer specific facts showing that

there is a genuine issue of fact for trial. FED. R. CIV. P. 56(e); see Lujan v. Nat’l Wildlife

Fed’n, 497 U.S. 871, 888 (1990); see also Celotex, 477 U.S. at 232-24.

In determining the existence of a genuine dispute of material fact, the Court

construes all facts in the light most favorable to the nonmoving party and draws all

reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986); Spath v. Hayes Wheels Int’l-Indiana, Inc., 211 F.3d 392, 396 (7th

Cir. 2000). While the Court must view the evidence and draw all reasonable

inferences in favor of the opposing party, “[i]nferences and opinions must be grounded

on more than flights of fancy, speculations, hunches, intuitions, or rumors[.]”

Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); Rand v. CF

Industries, Inc., 42 F.3d 1139, 1146 (7th Cir. 1994); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). “[A] complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all other facts immaterial.”

Celotex, 477 U.S. at 323. Furthermore, when opposing parties tell two different

stories, one of which is blatantly contradicted by the record, so that no reasonable

jury could believe it, a court should not adopt that version of the facts for purposes of

ruling on a motion for summary judgment. Scott v. Harris, 550 U.S. 372, 380 (2007);

Henning v. O’Leary, 477 F.3d 492, 496 (7th Cir. 2007).

DISCUSSION

I. McReaken’s Excessive Force Claim

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 a prison official is accused of using excessive physical force

in violation of the cruel and unusual punishment clause, the inquiry turns to whether

the force was applied in a good faith effort to maintain or restore discipline, or

whether it was applied maliciously and sadistically to cause harm. See Hudson v.

McMillian, 503 U.S. 1, 9 (1992) (citing Whitley, 475 U.S. at 327).

“[W]hether a defendant applied force in good faith or for purposes of causing

harm,” depends on several factors, “including the need for force, the amount of force

used, the threat reasonably perceived by the officer, efforts made to temper the

severity of force, and the extent of the injury caused by the force.” Lewis v. Downey,

581 F.3d 467, 476-77 (7th Cir. 2009) (citing Fillmore v. Page, 358 F.3d 496, 504 (7th

Cir. 2004); Whitley, 475 U.S. at 321). “The Eighth Amendment’s prohibition of ‘cruel

and unusual’ punishments necessarily excludes from constitutional recognition de

minimis uses of physical force, provided that the use of force is not of a sort ‘repugnant

to the conscience of mankind.’” Hudson v. McMillian, 503 U.S. 1, 9–10, 112 S. Ct. 995,

1000, 117 L. Ed. 2d 156 (1992) (quoting Whitley, 475 U.S., at 327, 106 S. Ct., at 1088).

Injury and force, however, are only imperfectly correlated, and it is the latter that

ultimately counts.” Wilkins v. Gaddy, 559 U.S. 34, 38 (2010). “An inmate who is

gratuitously beaten by guards does not lose his ability to pursue an excessive force

claim merely because he has the good fortune to escape without serious injury.” Id.

If the facts are as McReaken alleges, and there is no definitive evidence to

suggest that there is not a question of fact, then a reasonable jury may find that

Cleland, Dedecker, Hicks, Hubler, and Kellerman used force against him maliciously

and sadistically to cause harm. McReaken alleges that these corrections officers

punched and kicked him while he was not resisting in any way. Unless an inmate is

actively resisting officers, it is difficult to explain how kicking and punching the

inmate is necessary or even useful in order to restrain him. McReaken also claims

that he was punched by Hicks and Kellerman while handcuffed on his bed. It is likely

not reasonable for officers to perceive a significant threat when an inmate is lying

handcuffed on his bed as McReaken was when he alleges that Hicks and Kellerman

punched him.

Cleland, Dedecker, Hicks, Hubler, and Kellerman argue that they are entitled

to summary judgment because McReaken’s injuries were minimal, and the Court

should infer that they used reasonable de minimis force. However, there exists a

genuine dispute of material fact as to the extent of McReaken’s injuries. (Doc. 46-1,

p. 43; 46-8). Additionally, while the extent of an inmate’s injuries is one factor in the

determination of whether force was applied in good faith or for the purposes of

causing harm, it is not dispositive. Punching and kicking an inmate who is not

fighting back appears to constitute a “gratuitous beating” and McReaken does not

lose his ability to pursue an excessive force claim merely because he escaped without

serious injury. Wilkins, 559 U.S. at 38. Simply put, there remains a question of fact

as to whether excessive force was used against McReaken. See Id.

Cleland, Dedecker, Hicks, Hubler, and Kellerman additionally assert that they

are entitled to the defense of Qualified Immunity. (Doc. 46, pp. 19-20). 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).

“Qualified immunity is an affirmative defense, but once it is raised the burden

shifts to the plaintiff to defeat it.” Holleman v. Zatecky, 951 F.3d 873, 877 (7th Cir.

2020) (citing Sparing v. Vill. of Olympia Fields, 266 F.3d 684, 688 (7th Cir. 2001)).

“To overcome qualified immunity, the facts viewed in the light most favorable to [the

plaintiff] must ‘show that the defendant[s] violated a constitutional right’ and that

‘the right was clearly established at [that] time.’” Id. (quoting Estate of Clark v.

Walker, 865 F.3d 544, 550 (7th Cir. 2017)).

The threshold inquiry a court must undertake in a qualified immunity analysis

is whether plaintiff’s allegations, if true, establish a constitutional violation. See Hope

v. Pelzer, 536 U.S. 730, 736 (2002). In this case, if McReaken’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

Cleland, Dedecker, Hicks, Hubler, and Kellerman allegedly violated was not clearly

established at the time of the purported misconduct. See Juriss 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. A gratuitous beating by

prison guards is cruel and unusual punishment as established by Supreme Court

precedent. See Wilkins, 559 U.S. 38. As a result, summary judgment is inappropriate

at this time.

II. McReaken’s Failure to Intervene Claim2

Cleland, Dedecker, Hicks, Hubler, and Kellerman have also moved for

summary judgment on McReaken’s failure to intervene claim. Their sole argument is

that McReaken cannot meet the elements for a failure to protect claim because he

cannot demonstrate that excessive force was used against him. (Doc. 46, p. 13). It is

true that, “by definition, if there was no excessive force then there can be no failure

to intervene.” Abdullahi v. City of Madison, 423 F.3d 763, 767–68 (7th Cir. 2005).

However, as discussed above, Cleland, Dedecker, Hicks, Hubler, and Kellerman have

not disproven excessive force by summary judgment standards, so they are not

entitled to summary judgment on his failure to intervene claim on this theory either.

See Anderson, 477 U.S. at 255.

III. McReaken and Tolivers’ Denial of Medical Care Claims

“[D]eliberate indifference to serious medical needs of prisoners constitutes the

‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth Amendment.”

2 Plaintiffs bring an Eighth Amendment claim for failure to intervene against all Defendants. (Doc. 1,

p. 6). Defendants mistakenly characterize the claim in their Motion for Partial Summary Judgment

as “failure to protect.” Defendants argue that due to the Section 1915A merit review text order they

were confused by what claims on which Plaintiffs were permitted to proceed. (See Doc. 52, p. 17; Doc.

6). This argument is not well taken. In the merit review order, the Court briefly summarized the

Complaint as containing allegations of excessive force and denial of medical care and then proceeded

to dismiss the Illinois Department of Corrections as a defendant. The Court did not modify or

recharacterize the counts as stated by Plaintiffs in the Complaint. Regardless of Defendants’ confusion

and how they have labeled Count 3, the motion for summary judgment is denied as to the failure to

intervene claim, as there remains disputed issues of material fact involving the events of November 7,

2019.

Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted). It is well established

that a prisoner may bring a claim for deliberate indifference under § 1983. See, e.g.,

id. at 105. However, “[t]he Constitution is not a charter of protection for

hypochondriacs.” Cooper v. Casey, 97 F.3d 914, 916 (7th Cir. 1996). The Eighth

Amendment prohibits only cruel and unusual “punishments” not “conditions.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994). Consequently, claims alleging a denial

of medical care require that plaintiffs meet a two-part test: (1) They must

demonstrate that their medical conditions were objectively, sufficiently serious, and

(2) that defendants knew of and disregarded an excessive risk to their health. See

Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005).

To be objectively, sufficiently serious, a prison official’s act or omission must

result in the denial of the minimal civilized measure of life’s necessities. See Gutierrez

v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997) (quoting Farmer, 511 U.S. 825, 834

(1994). To qualify, plaintiffs must show that they were either suffering from a

condition that had been diagnosed by a physician as mandating treatment, or one

that is so obvious that even a lay person would easily recognize the necessity for a

doctor’s attention. See King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012) (internal

citations omitted); see also Gutierrez, 111 F.3d 1364 at 1369.

Toliver alleges that he was assaulted by Dedecker, Hicks, Hubler, and

Kellerman after taking a shower in the secured shower. (Doc. 1, p. 4; 46-2, Doc. p. 31-

36). After being removed from the shower by the corrections officers, Tolliver was

placed back in his cell. (Doc. 49, p. 7). Toliver did not ask Cleland, Dedecker, Hicks,

Hubler, or Kellerman to be seen by the medical staff, nor did he ask any of the other

staff on the first shift for medical assistance. (Doc. 46-2; Doc. 46-5, 49). Toliver claims

that he waited until the second shift because he did not want to ask the corrections

officers who had been involved in the incident for care. (Doc. 46-2, p. 53-54; Doc. 49,

p. 7).

After the second shift arrived at approximately 3:00 PM, Toliver asked to be

seen by medical, and was seen soon after by both mental health and by health care

services. (Doc. 49-8; Doc. 49-10). Around 4:50 PM, Toliver was examined by a

registered nurse who noted swelling to Toliver’s left wrist and pinky as well as some

abrasions to his lip and knees. (Doc. 46-11; Doc. 46-12). Upon consultation, Dr. Myers,

a doctor on staff, recommended Tolliver to the Pinckneyville Community Hospital for

further assessment. (Id.). At approximately 7:00 PM, Toliver was seen by the hospital

physician Dr. Beusse, and had X-rays taken indicating a mild nasal fracture, a wrist

fracture, and pinky fracture. (Doc. 49-10; Doc. 49-11). Toliver was given an ace

bandage for his arm and was prescribed medication for any residual pain. (Id.). At

about 9:40 PM, Toliver was released back to the Health Care Unit where he was

treated by the RN. (Doc. 49-10; Doc. 49-11; Doc. 49-12).

Likewise, McReaken does not recall asking Cleland, Dedecker, Hicks, Hubler,

or Kellerman for medical care after the shower incident, nor does he recall asking any

of the staff on duty during the first shift after he was placed back in his cell. (Doc. 46-

1, p. 44). Instead, McReaken states that he asked the second shift for medical

attention and was seen soon after by an RN to whom he stated his complaints. (Doc.

46-1, p. 44).

Even assuming that McReaken and Toliver satisfied their burden to offer

specific facts that create a question of fact, a fatal gap in their case is still present.

McReaken and Toliver have taken the liberty of couching their claims as a “denial”

of medical care by Cleland, Dedecker, Hicks, Hubler, or Kellerman. (Docs. 1, p. 5-6;

49, p. 24). However, in truth, McReaken and Toliver are merely alleging a delay of

medical care, given that they were seen soon after they requested it. (Docs. 46-1, p.

43; 49, p. 5, 15, 18; 49-5; 49-8; 49-10; 49-11). “[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.” Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir. 1996) (citing

Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995)); see also Walker v. Benjamin,

293 F.3d 1030, 1038 (7th Cir. 2002). Thus, as the Seventh Circuit has elaborated: “[i]n

cases where prison officials delayed rather than denied medical assistance to an

inmate, courts have required the plaintiff to offer ‘verifying medical evidence’ that

the delay . . . caused some degree of harm.” Williams v. Liefer, 491 F.3d 710, 714-15

(7th Cir. 2007) (emphasis added).

Based on the facts presented by McReaken, he did not complain of

psychological injuries when he was examined upon request. (Doc. 46-1, p. 43-44, 45).

Nor did he present any evidence, beyond his allegations, that he suffered actual

psychological or physical harm as a result of the delay in treatment. Toliver also did

not request to be seen by mental health following his interaction with Dedecker,

Hicks, Hubler, and Kellerman, and when he was later seen, he complained only about

physical injuries. (Doc. 46-2, p. 52-54, 62). He did not present any evidence, beyond

his allegations, that he suffered actual psychological or physical harm as a result of

the delay in treatment.

Given that McReaken and Toliver did not put forth any facts that their

relatively short delays in treatment contributed to any actual harm, mental or

physical, they have not satisfied their burden of proof. See Walker, 293 F.3d 1030,

1038 (7th Cir. 2002); see also Langston v. Peters, 100 F.3d 1235, 1241 (7th Cir. 1996).

Cleland, Dedecker, Hicks, Hubler, and Kellerman are therefore entitled to summary

judgment on this count. See Celotex, 477 U.S. at 323.

CONCLUSION

For the reasons set forth above, the Court GRANTS in part and DENIES in

part the Motion for Summary Judgment:

I. With respect to Count I, the Court DENIES summary judgment on

McReaken’s excessive force claims. The Court GRANTS summary

judgment on Toliver’s excessive force claim against Cleland.

II. With respect to Count II, the Court GRANTS summary judgment on all

denial of medical care claims. These claims are DISMISSED with

prejudice.

III. With respect to Count III, the court DENIES summary judgment on all

failure to intervene claims brought by McReaken. The Court GRANTS

summary judgment on Toliver’s failure to intervene claim against

Cleland.

IV. With respect to Count IV, these claims are DISMISSED with

prejudice.

Accordingly, Plaintiffs may proceed on the following claims:

Count I: McReaken’s excessive force claims against Cleland, Dedecker,

Hicks, Hubler, and Kellerman; Toliver’s excessive force claims

against Dedecker, Hicks, Hubler, and Kellerman.

Count III: McReaken’s failure to intervene claims against Cleland,

Dedecker, Hicks, Hubler, and Kellerman; Toliver’s failure to

intervene claims against Dedecker, Hicks, Hubler, and

Kellerman.

A status conference will be set at a later date to set firm dates for a final

pretrial conference and jury trial. In the meantime, the parties are encouraged to

discuss whether a settlement conference would be beneficial and, if so, request a

referral to a magistrate judge for that purpose.

IT IS SO ORDERED.

DATED: September 26, 2024

s/ Stephen P. McGlynn

STEPHEN P. McGLYNN

U.S. District Judge