The opinion of the court was delivered by: Herndon, District Judge
Plaintiff, a former inmate in the Centralia Correctional Center,*fn1 brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff previously was granted leave to proceed in forma pauperis without of an initial partial filing fee.
To facilitate the orderly management of future proceedings in this case, and in accordance with the objectives of Federal Rules of Civil Procedure 8(f) and 10(b), the Court finds it appropriate to break the claims in plaintiff's pro se complaint and other pleadings into numbered counts, as shown below. 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. The designation of these counts does not constitute an opinion as to their merit. Plaintiff's complaint is a jumble. It includes handwritten "copies" of grievances and disciplinary reports, hand-copied headnotes that do not reference cases, as well as photo copies of grievance forms and disciplinary reports. Because there are so many hand-copied statements and because they are included between paragraphs of factual statements, it is very difficult to determine whether these statements present factual allegations or are Plaintiff's attempts at stating the law. Although Plaintiff states clearly his intention to bring two claims, other parts of his factual narrative could indicate additional claims. The Court has attempted to find as many claims as Plaintiff's factual narrative warrants. As such, the Court's statement of claims differs a great deal from those expressed by Plaintiff.
COUNT 1: Against Defendants Riley and Brassel for using excessive force in violation of the Eighth Amendment; against Defendants Walker, Snyder, and Bowen for authorizing the use of force; and against Defendants Rausch, McDonal, and Weh for failing to intervene to prevent the use of force.
COUNT 2: Against Defendants Riley and Brassel for deliberate indifference to Plaintiff's serious medical need of a hernia and against unspecified defendants for failing to treat his hernia and for failing to treat injuries resulting from the use of excessive force described in Count 1.
COUNT 3: Against Defendants Walker, Mote, Snyder, Bowen, Rausch, McDonal, Weh, Brassel, and Riley for unconstitutional retaliation.
COUNT 4: Against defendants Hughes and Rolfingsmeier for violating Plaintiff's due process rights in adjudicating disciplinary charges.
COUNT 5: Against defendants Wisely and Sanner for failing to respond to or investigate grievances.
COUNT 6: Against Defendant Snyder for assaulting Plaintiff.
COUNT 7: Against unspecified defendants for denying Plaintiff work.
COUNT 8: A habeas claim based on Plaintiff's Illinois state conviction.
This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides, in pertinent part:
(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 governmental entity.
(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--
(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). After evaluating plaintiff's claims individually, the Court finds it appropriate to exercise its authority under Section 1915A to dismiss those claims that are frivolous before allowing plaintiff to proceed with his remaining claims. See also House v. Belford, 956 F.2d 711, 718-19 (7th Cir. 1992).
Plaintiff states that on March 14, 2003, Defendants Riley and Brassel, both Lieutenants at Centralia Correctional Center, used excessive force against him when moving him from his cell into segregation. Plaintiff states that Defendants Riley and Brassel choked Plaintiff causing him to lose consciousness, slammed his head into a wall causing three loose teeth and a swollen right eyebrow, and pushed him into a mop bucket causing a long, deep cut on his leg. The excessive force also rendered a hernia (a pre-existing condition) irreparable. Plaintiff states that Defendants Riley and Brassel were trying to kill him. Plaintiff also states that Defendants Marilyn D. Rausch, Jared A. McDonel, and Jeremy A. Weh were present and had a duty to, but did not intervene in the assault before injuries occurred. Plaintiff states that Defendants Donald N. Snyder and Edwin R. Bowen directed the officers to use excessive force and that Defendant Roger E. Walker failed to monitor the officers' use of excessive force.
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).
Plaintiff asserts that Defendants Rausch, McDonel, and Weh merely stood by and watched other officers during the events alleged in this Count, and that these defendants are equally as liable for his injuries due to their failure to intervene. The Seventh Circuit has examined this issue as it pertains to police officers who fail to intervene when a fellow officer exceeds his authority.
We believe it is clear that one who is given the badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge. That responsibility obviously obtains when the nonfeasor is a supervisory officer to whose direction misfeasor officers are committed. So, too, the same responsibility must exist as to nonsupervisory officers who are present at the scene of such summary punishment, for to hold otherwise would be to insulate nonsupervisory officers from liability for reasonably foreseeable consequences of the neglect of their duty to enforce the laws and preserve the peace.
Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972); see also Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 477 (7th Cir. 1997); Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (collected cases); Archie v. City of Racine, 826 F,2d 480, 491 (7th Cir. 1987). Based on these standards and Plaintiff's allegations, these claims ...