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John E. Henderson, Ii v. W. Patrick Hartshorn

January 4, 2011


The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge


Tuesday, 04 January, 2011 03:42:01 PM

Clerk, U.S. District Court, ILCD


On April 8, 2008, Plaintiff John E. Henderson, II, filed a Complaint (#1) against Defendants W. Patrick Hartshorn, Kevin Maskel, Herbert R. Powell, Colin D. Osterbur, and Scott Crawley alleging violations of the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983, as well as pendent state law claims of battery, assault, malicious prosecution, and civil conspiracy. Defendants filed their Motion for Partial Summary Judgment (#23) on February 1, 2010, with Plaintiff filing his Response (#27) on February 25, 2010. Defendant's Reply (#29) was filed on March 15, 2010, and the case is ready for judgment. On April 28, 2010, this court granted a motion to stay filed by Defendants. With the agreement of the parties and for the purpose of this summary judgment motion, the court lifts the stay. For the following reasons, Defendants' Motion for Partial Summary Judgment (#23) is GRANTED in part and DENIED in part.


On April 8, 2007, Plaintiff was incarcerated at the Vermilion County Jail serving a 60-day sentence after pleading guilty to driving on a suspended license. On that day Plaintiff was given a food tray by an officer but requested a special tray because he did not want to eat meat. After he was told that he would not get a special tray, Plaintiff requested to speak to the sergeant on duty. Speaking with Plaintiff through an intercom, Defendant Maskel told Plaintiff that he would not get a special tray, to which Plaintiff responded by saying "fuck you." Vermilion County jail rules forbid inmates from showing disrespect to officers. When a correctional officer feels that an inmate has shown him disrespect, it is up to the officer to determine if that disrespect may lead other inmates to believe they could also disrespect officers.

According to Defendant Maskel, when an inmate shows disrespect, he is moved or brought out of the housing unit to discuss the problem. Maskel believed that Plaintiff's use of "fuck you" was a show of disrespect. Maskel, Powell, Osterbur, and Crawley then went to Plaintiff's housing unit. Maskel testified that the other officers accompanied him for safety. Maskel claims he intended on speaking with Plaintiff in an effort to explain why Plaintiff did not get a special tray. Maskel was then going to place Plaintiff in an isolation cell for "officer disrespect." While the officers were in Plaintiff's housing unit, there was a physical incident between Plaintiff and the officers at the table where Plaintiff was sitting. One of the officers grabbed Plaintiff by the arm, and Maskel grabbed Plaintiff around the neck in order to bend him over the table to be cuffed. Plaintiff got one of his hands loose from an officer's grasp and pushed Maskel's hand away from his neck. Maskel claims Plaintiff bit his finger and called out "he just bit me." Plaintiff testified that Maskel then punched him once or twice in the face. Plaintiff testified that the other officers then threw him to the ground. Plaintiff landed on his stomach. Plaintiff was then handcuffed. Defendants Powell, Osterbur, and Crawley did not strike Plaintiff during the incident.

While Plaintiff was on the ground, Maskel walked around the table and attempted to strike Plaintiff in the chest area with his knee, but instead came down on Plaintiff's jaw (Plaintiff claims he was face down at this time, showing that Maskel intended to hit him in the jaw). Plaintiff's jaw was broken and he lost two or three teeth as a result of the incident. After the incident, Plaintiff claims Defendants dragged him out of his cell, down the hall, and into an elevator and eventually placed him in an isolated cell.

Plaintiff filed as an exhibit a video recording taken at the jail of the incident from April 8, 2007. The video, which does not have audio, shows the incident from the time before the officers engage Plaintiff up to the time Plaintiff was being dragged to the elevator. The video begins with Plaintiff seated in what looks like a common area, with other inmates sitting at the table with him or milling about the room. Four officers then enter. One goes to grab Plaintiff's arm, and Plaintiff pulls away. Plaintiff stands up as the officers surround Plaintiff, with one of the officers appearing to give Plaintiff verbal directions. One of the officers then grabs Plaintiff's hands and places them behind his back. Another officer places his arm around Plaintiff's neck and the officers try to bring Plaintiff down to the table. Plaintiff is struggling and appearing to resist the officers. As the officers continue to struggle with Plaintiff one officer (Maskel, most likely) can be seen to punch Plaintiff in the head twice. Plaintiff is then hauled to the ground by the officers and continues to apparently struggle with them. The camera's view of Plaintiff while he is on the ground is somewhat obscured by the officers and other inmates, so the incident of Maskel supposedly striking Plaintiff's jaw with his knee is not readily observable. Plaintiff is then dragged from the room by the officers. The remainder of the video shows the officers dragging Plaintiff to the elevator.

During his deposition, conducted on December 29, 2009, Defendant Hartshorn testified that there was no concrete policy at the jail on how to deal with every situation where an inmate yells at correctional officers. In most cases, officers could tell immediately who was screaming or who was "doing something they're not supposed to be doing in a cell block..." Rather, "it is up to the officer's discretion as to whether he thinks it's a serious situation and whether he thinks that it's a situation that could cause other inmates to get out of control if it was left unattended." When asked if there was any policy on how a correctional officer should respond if he feels disrespected by an inmate, Hartshorn stated that "it would be up to the correctional officer to determine if that disrespect was enough to lead other inmates to believe that they could also disrespect the officer..." If a correctional officer sees a superior officer act inappropriately, the correctional officer is required to report it to an officer of equal rank or higher in writing. If an incident is big enough, an investigator would be assigned. Hartshorn had no recollection of any incident involving Plaintiff on April 8, 2007, nor did he personally know Plaintiff. Hartshorn had no independent recollection of when he found out about the incident involving Plaintiff, but something like that would probably have been brought to his attention the next day. He does not know who brought it to his attention.

A criminal case was initiated as a result of the incident. On November 5, 2009, a Vermilion County jury found Plaintiff guilty of aggravated battery for biting Maskel during the incident. At this time, Plaintiff currently has pending before the Vermilion County Circuit Court a motion for reconsideration of sentence. The Fourth District Appellate Court has not yet ruled on the merits of Plaintiff's case.


Defendants filed their Motion for Partial Summary Judgment (#23) on February 1, 2010. In their Motion, Defendants argued: (1) Plaintiff's § 1983 excessive force and state-law assault and battery claims fail as to Defendants Powell, Osterbur, and Crawley because the force used by these Defendants was de minimis and not intended to cause any harm to Plaintiff; (2) Plaintiff's § 1983 claim against Defendant Hartshorn fails because Vermilion County has no unconstitutional policy, practice, or custom regarding the use of force that caused Plaintiff's injury; (3) Plaintiff's state-law malicious prosecution claim fails because the criminal proceeding was not terminated in his favor and because Defendants did not institute the proceeding; and (4) Plaintiff's state-law civil conspiracy claim fails because, under the intra-corporate conspiracy doctrine, employees of a corporation cannot conspire with each other and because there is no evidence of an agreement by ...

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