The opinion of the court was delivered by: Reagan, District Judge
Plaintiff Sidney Perry brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. At the time he filed this action, Perry filed a motion for leave to file his complaint in handwritten form (Doc. 2). This motion is GRANTED.
Perry later filed a motion for leave to file an amended complaint (Doc. 7). He did not submit a proposed amended complaint with this motion. Instead, he has included his amended complaint within the text of his motion. This motion is GRANTED; the parties only will consider the claims raised in this motion, as the amended complaint supersedes and replaces the original complaint. See Flannery v. Recording Indus. Assoc. Of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004).
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). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)
Perry claims that on January 14, 2009, he was taken to mental health for an evaluation by Defendant Sauerwein. Perry claims that after briefly meeting with Sauerwein, Defendants Moore and Bradley addressed him with a racial slur and handcuffed him. They then began to beat him, along with defendant Monroe. Perry claims he was hit, kicked and beaten with handcuffs. After this went on for five minutes, Defendants Dilday and an unknown sergeant told them to "quiet that nigger up," and he was moved to protective custody. At this point Perry was attacked again for another eight minutes by Monroe, Moore and Bradley, while Dilday and the sergeant watched and encouraged their actions. Perry was then taken to a strip cell with no toilet or sink and no property for three days. Perry claims the officers wrote a fraudulent disciplinary ticket, for which he was sentenced to 90 days in segregation. He also asserts that he was denied medical treatment for three days.
Based on the allegations of the complaint, the Court finds it convenient to divide Perry's pro se action into four counts, as discussed 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.
Perry claims he was beaten in violation of the Eight Amendment's prohibition on cruel and unusual punishments. He alleges that at the time of his beatings he was already in handcuffs and therefore posed no credible threat to the officers.
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).
Based on this standard, the Court is unable to dismiss Perry's Eight Amendment claims against Monroe, Moore or Bradley at this time.
Perry also asserts that Dilday and the sergeant watched and encouraged the assault, 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 ...