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Ozzie Pickett, Inmate #N-50240 v. Yolande Johnson

March 20, 2012

OZZIE PICKETT, INMATE #N-50240, PLAINTIFF,
v.
YOLANDE JOHNSON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gilbert, District Judge:

MEMORANDUM AND ORDER

Plaintiff Ozzie Pickett, an inmate in Tamms Correctional Center ("Tamms"), brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff is serving twenty year sentences for kidnaping, armed robbery, and rape; six year sentences for sexual assault, robbery, kidnaping and armed violence; as well as additional sentences for offenses committed while in prison. Although Plaintiff has accumulated more than three "strikes" under 28 U.S.C. § 1915(g), this Court granted him leave to proceed in forma pauperis based on the allegations in his complaint that he may be under imminent danger of serious physical injury (Doc. 18). 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, 550 U.S. 544, 570 (2007). Conversely, a complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

Upon careful review of the complaint and supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.

The Complaint

Plaintiff's lengthy handwritten complaint was filed as two documents (Doc. 1 and Doc. 1-1). In addition, after the complaint was filed, Plaintiff submitted some 139 pages of "exhibits" which the Court declined to file (see Doc. 7), and two affidavits (Docs. 6 & 11). The affidavits appear to describe matters outside the scope of the complaint. Plaintiff has not tendered or sought leave to file an amended complaint, and the Court will not accept piecemeal amendments. See Fed. R. Civ. P. 15; SDIL-LR 15.1; Flannery v. Recording Indus. Ass'n of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). Accordingly, the contents of those affidavits shall not be considered, and the Court shall proceed to review the original complaint (Docs. 1 & 1-1) only.

The complaint begins by describing assaults on Plaintiff by several Defendant correctional officers on December 8, 2011. First, while driving Plaintiff back to Tamms after he had spent a week at Pontiac Correctional Center ("Pontiac") on a writ to appear in court, Defendants Keith Benefield,*fn1 Watkins, and Lt. John Doe punched Plaintiff on the back and side of his head and verbally threatened him (Doc. 1, p. 6-8). Defendant Watkins repeatedly slammed on the van's brakes in order to throw Plaintiff against the sides of the "cage" where he was seated in shackles and handcuffs, and Defendant K. Benefield turned on the air conditioner to increase Plaintiff's discomfort. During the van ride, these Defendants verbally harassed Plaintiff, using racial epithets, and at one point discussed hanging him (Doc. 1, p. 8).

After Plaintiff's arrival at Tamms later that day, Defendant Watkins again punched Plaintiff in the head while Defendants Peterson and Sisk held him down. Defendants K. Benefield and Hunsaker also participated in this assault (Doc. 1, p. 14). In addition, Defendants K. Benefield, Peterson, Hunsaker, Watkins, Sisk, and Lt. Robert Benefield, while "shaking down" Plaintiff's property, destroyed and threw away Plaintiff's mail and legal papers, and read his confidential legal correspondence (Doc. 1, p. 11).

Subsequently, Plaintiff was taken to the prison hospital, where he reported the assault and his injuries to Defendants Hill and Parrish (Doc. 1, p. 15). They examined him but gave him no medical treatment, nor did they request Internal Affairs to investigate the incident.

Plaintiff claims that some two weeks earlier, on November 24, 2011, he had complained to Defendant Lambert (the Tamms Assistant Warden) about the danger he believed he was in from numerous correctional officers, including those Defendants who perpetrated the December 8, 2011, assaults (Doc. 1, p. 15). Additionally, Plaintiff had filed a grievance on August 30, 2011, over another incident of excessive force. He requested Defendant Lambert to "restrain the Defendants from having contact with Plaintiff" and from working on Plaintiff's housing unit (Doc. 1, p. 16). Plaintiff asserts that these complaints motivated Defendants K. Benefield, R. Benefield, Watkins, Peterson, Sisk, Hunsaker, and John Doe to assault him and destroy his mail, legal correspondence, and other property in retaliation against him for complaining (Doc. 1, p. 16).

Plaintiff further notes that he has several pending court cases which will require him to again be transported to another institution, thus placing him in a situation where another assault such as the one on December 8, 2011, may recur. Indeed, while this case was awaiting preliminary review, Plaintiff notified the Court that he was again temporarily relocated to Pontiac on February 2, 2012 (Doc. 17).

Plaintiff asserts that several Defendants conspired together to orchestrate and then to cover up the December 8, 2011, assault on him, as well as the retaliatory destruction of his property. He further claims that the warden and other administrators and officers (Defendants Johnson, Lambert, Monti, Markel, J. Smith,*fn2 Delgado, Robertsen, and T. Osman;*fn3 along with four staff members not named elsewhere in the complaint as Defendants) failed to protect him from racially motivated assaults by other Defendants, failed to discipline correctional staff, ignored complaints from Plaintiff and other inmates, and housed him in inhumane conditions (Doc. 1, p. 19; Doc. 1-1, p. 1). He states that the Defendants who assaulted him on December 8, 2011, had previously victimized three other black inmates in racially motivated attacks (Doc. 1-1, p. 1).

Plaintiff seeks declaratory relief, a temporary restraining order and injunction requiring the administrative Defendants to restrain nineteen named Tamms staff members (some of whom are Defendants in this action and others who are not named elsewhere in the complaint) and twelve named fellow inmates from any contact with Plaintiff, as well as preventing Defendants from housing Plaintiff in certain units within Tamms (Doc. 1-1, pp. 6-7). He also requests nominal, compensatory and punitive damages.

Discussion

Plaintiff enumerated seven counts in his pro se complaint (Doc. 1-1, pp. 2-6). Based on the allegations of the complaint, the Court finds it convenient to divide the action into seven (7) counts, but these do not correspond to Plaintiff's original designations of his claims. The parties and the Court will use the Court's designations below 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.

Count 1 - Excessive Force

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 § 1983. See Wilkins v. Gaddy, 130 S. Ct. 1175 (2010); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). An inmate must show that an assault occurred, and that "it was carried out 'maliciously and sadistically' rather than as part of 'a good-faith effort to maintain or restore discipline.'" Wilkins, 130 S. Ct. at 1180 (citing Hudson v. McMillian, 503 U.S. 1, 6 (1992)). 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." Id. (the question is whether force was de minimis, not whether the injury suffered was de minimis); see also Outlaw v. Newkirk, 259 F.3d 833, 837-38 (7th Cir. 2001).

Plaintiff also asserts that some Defendants either helped hold him while he was being punched, or merely stood by and watched him being attacked by another officer. He seeks to hold these Defendants equally liable for his injuries due to their involvement and/or failure to intervene. The Seventh Circuit has examined this issue as it pertains to police officers who fail to intervene when a fellow officer exceeds his authority, stating:

We believe it is clear that one who is given the badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge. That responsibility obviously obtains when the nonfeasor is a supervisory officer to whose direction misfeasor officers are committed. So, too, the same responsibility must exist as to nonsupervisory officers who are present at the scene of such summary punishment, for to hold otherwise would be to insulate nonsupervisory officers from liability for reasonably foreseeable consequences of the neglect of their duty to enforce the laws and preserve the peace.

Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972); see also Lanigan v. Vill. of E. Hazel Crest, 110 F.3d 467, 477 (7th Cir. 1997); Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (collected cases); Archie v. City of Racine, 826 F.2d 480, 491 (7th Cir. 1987).

Plaintiff's description of being punched in the head by Defendants K. Benefield, Watkins, and Lt. John Doe, along with their verbal taunts, are sufficient to state a claim that excessive force was used against him in a malicious manner. Likewise, he articulates an excessive force claim against those Defendants who assisted or failed to intervene in the alleged assault. Accordingly, Plaintiff's claims against ...


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