The opinion of the court was delivered by: Harold A. Baker United States District Judge
This cause is before the court for consideration of the defendants' motion for summary judgment. [d/e 32]. The plaintiff filed a response to the motion for summary judgment, but also filed a motion to continue asking for appointment of counsel. The court denied the plaintiff's motion for appointment of counsel, but allowed the plaintiff additional time if he wished to file any supplemental response to the dispositive motion. See May 18, 2007. The deadline has passed and the plaintiff has not filed any further response.
The plaintiff, Kim Lee Millbrook, brought this action pursuant to 42 U.S.C. §1983 claiming that his constitutional rights were violated at the Rock Island County Jail. The plaintiff has six surviving defendants including Correctional Officers Prine, Burgess, Perez, Lagaisse, Dyer, and Viren. See August 23, 2006 Merit Review Order. The plaintiff is alleging that the defendants violated his Eighth Amendment rights on May 21, 2006 when they used excessive force and were deliberately indifferent to his serious medical condition. The two Eighth Amendment claims are against the defendants in their individual capacities only.
The plaintiff's complaint alleges that on May 21, 2006, Officer Prine noticed that the plaintiff had extra supplies in his cell. The officer entered the cell and ordered the plaintiff to drop to his knees and cuff up. The plaintiff says the defendants then proceeded to spray mace in his eyes and punched and kicked the plaintiff even though he was not offering any resistance. The plaintiff says he was then denied medical care for his injuries.
The plaintiff did not directly respond to the defendants statement of undisputed facts. Therefore the following facts are taken from the defendants' statement of undisputed fact, the defendants' exhibits and, where appropriate, the plaintiff's complaint and response to the dispositive motion.
The plaintiff was at the Rock Island County Jail from January 10, 2006 to June 20, 2006. Jail Administrator Steve Dean says the plaintiff was issued a copy of the inmate rules, regulations, polices and procedures when he was processed into the jail. (Def. Memo, Dean Aff, p. 1).
Defendant Prine says on May 21, 2006, he was assigned to work the third floor of the jail. Prine said he was assisting with inmate dinner at about 4:30 p.m. (Def. Memo, Prine Aff, p.1) The defendant says he would do a headcount while the trustees handed out dinner trays. Prine says he was also attempting to remove any extra jail issued items from individual cells. Prince says he could see that the plaintiff had an extra blanket and multiple rolls of toilet paper. Prine said the cell was unlocked and he entered to remove the items. Id.
Prine said he noticed that the plaintiff was standing in the back corner of his cell with a blanket wrapped around him. Prine said he removed 13 extra rolls of toilet paper, two extra blankets, four extra sheets, two extra towels and two extra wash towels. Id. The defendant says he also noticed two jump suits on the cell floor. He asked the plaintiff to remove the blanket he had wrapped around him so the officer could see if he was wearing a jumpsuit. The defendant claims that the plaintiff became upset and ordered the officer out of his cell. Id.
Prine says he started to pick up the extra jumpsuit, but the plaintiff removed the blanket from around him and came toward the officer "as if to attempt to put the blanket over my head." (Def. Memo, Prine Aff. p.2). The defendant radioed for assistance. "I was concerned that he may attempt to push me over the railing of the 2nd tier if Millbroook was to get out of his cell and physical confrontation were to ensue." Id.
Prine says he attempted to keep a distance from the plaintiff while giving him commands to turn around, get on his knees and place his hands behind his back. The defendant claims that the plaintiff refused all of his orders and continued to hold the blanket up in front of him. Defendant Prine says he moved his O.C. (Oleoresin capsicum) spray and sprayed one burst toward the plaintiff's face. However, the plaintiff was able to block the spray with the blanket. The defendant says he tried two more time before he made contact with the plaintiff's facial area. Id.
Prine says the "O.C. seemed to have little effect on Millbrook. Millbrook had dropped the blanket and now assumed a bladed offensive stance with both fists clinched." Id. Prine says the plaintiff continued to ignore his verbal commands and threatened to kill the officer.
Officers Viren, Dyer, Lagaisse, Warren and Burgess arrived on the scene. Officer Viren says he saw the plaintiff and Officer Prine in a struggle as Officer Prine was attempting to handcuff the plaintiff. Viren says he heard the plaintiff threaten to kill Defendant Prine and refuse verbal commands. (Def. Memo, Viren Aff, p. 2) Viren says he removed his taser, placed it on the right side of the plaintiff's back and informed him that if he did not comply with commands, Viren would use the taser. Defendant Viren says the plaintiff continued to struggle and he "deployed one, five second burst of the M26 taser to the right side of Millbrook's ...