The opinion of the court was delivered by: G. PATRICK MURPHY, Chief Judge, District
Plaintiff Danny Johnson, an inmate in the Menard Correctional
Center, brings this action for deprivations of his constitutional
rights pursuant to 42 U.S.C. § 1983. Johnson previously was
granted leave to proceed in forma pauperis, and he has tendered
his initial partial filing fee as ordered.
This case now is before the Court for a preliminary review of
the complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening. The court shall review, before
docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a
governmental entity or officer or employee of a
(b) Grounds for Dismissal. On review, the court
shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the
(1) is frivolous, malicious, or fails to state a
claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks
an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319
, 325 (1989). Upon
careful review of the complaint and any supporting exhibits, the
Court finds it appropriate to exercise its authority under §
1915A; portions of this action are legally frivolous and, thus,
subject to summary dismissal.
Johnson alleges that while he was in custody of the Marion,
Illinois, police department, Defendant Rubright "intentionally
used malicious and physical abuse while [Johnson] was
handcuffed," causing unspecified injuries to Johnson, in
violation of his rights under the Eighth Amendment.
The intentional use of excessive force by prison guards against
an inmate without penological justification constitutes cruel and
unusual punishment in violation of the Eighth Amendment and is
actionable under Section 1983. Hudson v. McMillian, 503 U.S. 1,
6-7 (1992); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir.
2000). "[W]henever prison officials stand accused of using
excessive physical force in violation of the Cruel and Unusual
Punishments Clause, the core judicial inquiry is . . . whether
force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm."
Hudson, 503 U.S. at 6-7. An inmate seeking damages for the use
of excessive force need not establish serious bodily injury to
make a claim, but not "every malevolent touch by a prison guard
gives rise to a federal cause of action. . . . [the] prohibition
of `cruel and unusual' punishment 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.'" Id. at 9-10; see also Outlaw v.
Newkirk, 259 F.3d 833, 837-38 (7th Cir. 2001).
Although Johnson's claim against Rubright is brief, the Court
is unable to dismiss this claim at this point in the litigation.
See 28 U.S.C. § 1915A. Johnson next states that within the context of his criminal
prosecution in Williamson County on unspecified charges, he
sought to file a counterclaim against his accuser. Defendant
Byerley, an assistant state's attorney in Williamson County,
declined to file charges against that unspecified person, so
Johnson now seeks aggregate damages of $1,000,000 against
Byerley. However, "[i]n initiating a prosecution and in
presenting the State's case, the prosecutor is immune from a
civil suit for damages under § 1983." Imbler v. Pachtman,
424 U.S. 409, 431 (1976). Therefore, Johnson's claim against Byerley
is dismissed from this action with prejudice.
Finally, Johnson also is upset with Defendant Broeking, his
state-appointed defense attorney, for his failure to zealously
represent Johnson, although it is unclear from the complaint
whether Johnson refers to Broeking's representation of Johnson on
the criminal charges, or whether this claim involves the incident
with Rubright. For Broeking's shortcomings, Johnson also seeks
$1,000,000 in aggregate damages, but the Supreme Court has held
that a public defender does not act under color of law when
performing the traditional function of an attorney for an
indigent party to a state criminal proceeding. Polk County v.
Dodson, 454 U.S. 312, 324-25 (1981). See also Sceifers v.
Trigg, 46 F.3d 701, 704 (7th Cir. 1995). Therefore,
Johnson's claim against Broeking is dismissed from this action
IT IS HEREBY ORDERED that Defendants BYERLEY and BROEKING
are DISMISSED from this action with prejudice.
The Clerk is DIRECTED to prepare Form 1A (Notice of Lawsuit
and Request for Waiver of Service of Summons) and Form 1B (Waiver
of Service of Summons) for Defendant RUBRIGHT. The Clerk shall
forward those forms, USM-285 forms submitted by Plaintiff, and
sufficient copies of the complaint to the United States Marshal
for service. The United States Marshal is DIRECTED, pursuant to Rule
4(c)(2) of the Federal Rules of Civil Procedure, to serve process
on Defendant RUBRIGHT in the manner specified by Rule 4(d)(2)
of the Federal Rules of Civil Procedure. Process in this case
shall consist of the complaint, applicable Forms 1A and 1B, and
this Memorandum and Order. For purposes of computing the passage
of time under Rule 4(d)(2), the Court and all parties will
compute time as of the date it is mailed by the Marshal, as noted
on the USM-285 form.
If Defendant Rubright is no longer employed by the Marion
Police Department, the Department shall furnish the Marshal with
Defendant's last-known address upon issuance of a Court order
which states that the information shall be used only for purposes
of effectuating service (or for proof of service, should a
dispute arise) and any documentation of the address shall be
retained only by the Marshal. Address information obtained
pursuant to such order shall not be maintained in the Court file
nor disclosed by the Marshal.
The United States Marshal shall file a returned waiver of
service as well as any request for waiver of service that is
returned as undelivered as soon as it is received. If a waiver of
service is not returned by Defendant within THIRTY (30) DAYS
from the date of mailing the request for waiver, the United
States Marshal shall:
Request that the Clerk prepare a summons; the Clerk
shall then prepare such summons as requested.
Personally serve process upon Defendant pursuant to
Rule 4 of the Federal Rules of Civil Procedure and
28 U.S.C. § 566(c).
Within ten days after personal service is effected,
the United States Marshal shall file the return of
service for Defendant, along with evidence of any
attempts to secure a waiver of service of process and
of the costs subsequently incurred in effecting
service on said Defendant. Said costs shall be
enumerated on the USM-285 form and shall include the
costs incurred by the Marshal's office for
photocopying additional copies of the summons and
complaint and for preparing new USM-285 forms, if required. Costs of service will be taxed against the
personally-served Defendant in accordance with the
provisions of Fed.R.Civ.P. 4(d)(2) unless
Defendant shows good cause for such failure.
Plaintiff is ORDERED to serve upon Defendant or, if
appearance has been entered by counsel, upon that attorney, a
copy of every further pleading or other document submitted for
consideration by this Court. He shall include with the original
paper to be filed with the Clerk of the Court a certificate
stating the date that a true and correct copy of any document was
mailed to Defendant or his counsel. Any paper received by a
district judge or magistrate judge which has not been filed with
the Clerk or which fails to include a certificate of service will
be disregarded by the Court.
Defendant is ORDERED to timely file an appropriate responsive
pleading to the complaint and shall not waive filing a reply
pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this cause is REFERRED to
a United States Magistrate Judge for further pretrial
Further, this entire matter is hereby REFERRED to a United
States Magistrate Judge for disposition, as contemplated by Local
Rule 72.2(b)(2) and 28 U.S.C. § 636(c), ...