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Hopes v. United States Dep't of Justice

November 5, 2008

ROBERT C. HOPES, JR., PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM AND ORDER

The Court previously separated the allegations in the amended complaint into three separate counts. The Court found that none of the claims shared a defendant in common, further finding that his claims must be brought as three separate actions. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff was advised of the Court's intention to sever Count 2 and Count 3 into two new cases, and he was given an opportunity to voluntarily dismiss those claims. Plaintiff agreed to severance of his claims into separate actions, which was done on October 7, 2008 (see Doc. 82).

The case currently before the Court deals only with Count 1 of the amended complaint. As defined by the Court, this action is solely against Defendants Keys, Eberhart, Spence, Tepovich, Patterson, Edge and Shoff for use of excessive force on July 14, 2006 (¶¶ 1-12, 18).*fn1 This case is now 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 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). 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 subject to summary dismissal.

FACTS ALLEGED

On July 14, 2006, Plaintiff apparently attempted suicide by tying a sheet around his neck and around the bars in his cell. Defendant Eberhart discovered him and called for assistance. Defendants Keys, Spence and Tepovich responded. Spence directed Plaintiff to submit to hand restraints, but Plaintiff did not comply. Keys then told Plaintiff they were coming into his cell; when the cell door opened, Keys, Eberhart and Tepovich rushed into his cell, and each assaulted him with fists and baton. Spence witnessed this assault and gave three orders for them to stop.

Following this assault, Plaintiff was taken to the medical unit due to a laceration on his head. Plaintiff alleges that Defendant Patterson told Raelynn Cruse (not a defendant) to document the injuries as a suicide attempt, and the laceration on his head was attributed to the cell door hitting him when it was opened. Plaintiff alleges that the laceration was actually caused by the baton wielded by Keys. Plaintiff further states that he advised Patterson that he was having some personal problems, but Patterson did not immediately refer him for suicide watch. Instead, he was returned to another cell, where he later made another suicide attempt by tying his jumpsuit around his neck. After that second attempt, he was then placed under suicide watch.

While on suicide watch, Plaintiff told Lt. Milliard (not a defendant) about the assault.

Milliard said that he would refer the matter to Defendant Edge for investigation. Plaintiff alleges that Edge did not conduct the investigation; instead, Defendant Shoff handled it, but Plaintiff alleges that ...


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