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Rice v. Kunkel

January 12, 2007

GARY RICE, PLAINTIFF,
v.
BLAIR L. KUNKEL, DEFENDANT.



The opinion of the court was delivered by: Harold A. Baker United States District Judge

Merit Review Order

The plaintiff, currently incarcerated in Pinckneyville Correctional Center, filed this action regarding events that occurred during his incarceration in Graham Correctional Center.

The court is required by 28 U.S.C. §1915A to conduct a merit review of the Complaint, identifying cognizable claims and dismissing claims that are "frivolous, malicious, or fail[] to state a claim upon which relief may be granted . . . ."*fn1 A merit review hearing was held on January 11, 2007, to aid the court in this review. Plaintiff appeared pro se, and the transcript from that hearing will be filed.

The merit review standard is the same as the motion to dismiss standard. The plaintiff's pro se complaint is liberally construed, taking the allegations as true and drawing all reasonable inferences in the plaintiff's favor. Haines v. Kerner, 404 U.S. 519 (1972). Dismissal is appropriate only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines, 404 U.S. at 521.

Allegations

The allegations are taken from the Complaint and its attachments, and the plaintiff's statements in the merit review hearing. The allegations are liberally construed and set forth as true for purposes of this order only.

On March 19, 2005, the plaintiff was incarcerated in Graham Correctional Center, standing in the chow line after breakfast. He witnessed what he describes as an assault on another inmate, Yarii Massey.Specifically, an unidentified officer squirted two juices onto Massey, one in Massey's breast pocket, and one in his sleeve. The officers began laughing, thinking Massey's predicament funny. The plaintiff advised Massey that he should file a grievance about the officer's conduct, a remark which Defendant Kunkel overheard.

As the plaintiff was leaving, Defendant Kunkel approached him, directing him to face forward. The plaintiff, however, was already facing forward. The plaintiff then asked Kunkel for his name and badge number. Kunkel then ripped the plaintiff's identification card off him, grabbed him by the collar, and yanked him from the chow line. Kunkel took the plaintiff to the "inner core shack" and said, "You n-----s are going to learn to obey!" "Take your Black ass on to your unit!"

The plaintiff filed a grievance on the matter. Defendant Kunkel fabricated a disciplinary report against the plaintiff charging the plaintiff with intimidation and threats and disobeying a direct order. Kunkel wrote in the report that he had ordered the plaintiff to face forward, but the plaintiff refused, asked for Kunkel's name and badge number, and read Kunkel's name and badge number out loud. Plaintiff denies Kunkel gave any direct orders, and asserts that Kunkel's actions were motivated by Plaintiff's request for his name and badge number and by Kunkel's desire to prevent or intimidate the plaintiff from acting as a witness regarding the Massey juice incident.

The plaintiff was found guilty of the charges and received one month B grade and one month commissary restriction. However, the guilty finding was expunged on appeal "due to insufficient information to substantiate the charges." (8/29/05 ARB letter).

Analysis

I. Eighth Amendment--Excessive Force

Defendant Kunkel allegedly ripped the plaintiff's identification card off him, grabbed the plaintiff by the collar, and yanked him from the chow line. The plaintiff describes Kunkel's behavior as an "assault." "But not every touch that an inmate finds offensive rises to the level of a constitutional violation. 'The Eighth Amendment's 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."' " Lunsford v. Bennett, 17 F.3d 1574, 1582 (7th Cir. 1994)(quoted cites omitted).

The court does not condone Kunkel's actions, but no reasonable inference arises of excessive force under Eighth Amendment standards. The force used by Kunkel was de minimis and not "repugnant to the conscience of mankind" by constitutional standards, and the plaintiff suffered no physical injury. See DeWalt v. Carter, 224 F.3d 607, 620 (7th Cir. 2000)(allegation that guard shoved prisoner toward a doorway and into a doorframe after the prisoner told the guard ...


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