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Elijah Reed, #M-12485 v. J. Durham

September 13, 2012

ELIJAH REED, #M-12485, PLAINTIFF,
v.
J. DURHAM, D. JOHNSON, J. MILLER, AND C/O LOCKHEAD,
DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, currently incarcerated at Tamms Correctional Center ("Tamms"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. His claims arose while he was confined at Menard Correctional Center ("Menard"). Plaintiff is serving a life sentence for murder.

In his complaint, Plaintiff claims that Defendants, who are all correctional officers, beat and injured him on July 22, 2012. Specifically, he notes that prior to the incident, Defendant Lockhead had threatened to harm Plaintiff several times. Plaintiff was confined in a segregation cell on July 22, when Defendant Lockhead approached the cell. Defendant Lockhead placed handcuffs on Plaintiff's cellmate (this was done by having the cellmate put both hands through the "chuckhole" in the cell door). Before the cell door was opened, Plaintiff asked Defendant Lockhead whether he (Plaintiff) also had to cuff up, since that was the procedure for inmates in segregation (Doc. 1, p. 3). Defendant Lockhead responded, "Today is your [expletive] day, Reid." Id. Defendant Lockhead then opened the cell door, moved the cellmate out, and struck Plaintiff in the face with his fist and keys. As Plaintiff tried to defend himself, Defendants Johnson and Miller came in and "overpowered" Plaintiff. Id. Defendants then held Plaintiff in a choke hold on the floor for twenty minutes after they cuffed him.

Later, Defendants Lockhead, Johnson, and Miller took Plaintiff to a "bullpen" where Defendant Durham joined them (Doc. 1, p. 4). All Defendants then began beating Plaintiff again, injuring his eyes, mouth, nose, chest, back, and wrists. Plaintiff was transferred to Tamms the same day, after Defendant Miller wrote a disciplinary report. That report falsely stated that Plaintiff had been cuffed by Defendant Lockhead, but then Plaintiff slipped out of the cuffs and assaulted Defendant Lockhead when he entered Plaintiff's cell. Plaintiff claims that the incident was recorded on the prison's surveillance system.

Based on these facts, Plaintiff asserts claims of excessive force, battery, and deliberate indifference to health and safety. He seeks compensatory and punitive damages, as well as declaratory and injunctive relief.

Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable federal cause of action against all Defendants for excessive force (Count 1) and for a state law battery claim (Count 2).*fn1 However, the deliberate indifference claim (Count 3) shall be dismissed without prejudice at this time.

The basis for Plaintiff's assertion of a deliberate indifference claim is that Defendants subjected him to physical harm by using excessive force against him, knowing that their actions would place his health and safety at risk. A deliberate indifference claim arises from an inmate's Eighth Amendment right to be free from cruel and unusual punishment -- which is also the source of an excessive force claim. Additionally, Plaintiff's "deliberate indifference" claim is grounded on the identical facts which underlie the excessive force claim.*fn2 It would be redundant to allow both claims, based on the same set of facts, to go forward. See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (dismissing equal protection and Eighth Amendment claims based on same circumstances as free exercise claim because free exercise claim "gains nothing by attracting additional constitutional labels"). Because the excessive force claim shall be addressed in Count 1 above, the Count 3 deliberate indifference claim shall be dismissed.

Pending motion

The Court DENIES without prejudice Plaintiff's motion for appointment of counsel (Doc. 3). There is no constitutional or statutory right to appointment of counsel in federal civil cases. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010). Federal District Courts have discretion under 28 U.S.C. § 1915(e)(1) to request counsel to assist pro se litigants. Id. When presented with a request to appoint counsel, the Court must consider: "(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself [.]" Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007). With regard to the first step of the inquiry, there is no indication that Plaintiff has even made an effort to obtain counsel on his own, much less been effectively precluded from obtaining counsel on his own. Plaintiff may choose to re-file this motion at a later stage in the litigation.

Disposition

COUNT 3 of the complaint is dismissed without prejudice.

The Clerk of Court shall prepare for Defendants DURHAM, JOHNSON, MILLER, and LOCKHART: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the complaint, and this Memorandum and Order to each Defendant's place of employment as identified by Plaintiff. If a Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to effect formal service on that Defendant, and the Court will require that Defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of Civil Procedure.

With respect to a Defendant who no longer can be found at the work address provided by Plaintiff, the employer shall furnish the Clerk with the Defendant's current work address, or, if not known, the Defendant's last-known address. This information shall be used only for sending the forms as directed above or for formally effecting service. Any documentation of the address shall be retained only by the Clerk. Address information shall not be maintained in the court file or disclosed by the Clerk.

Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is entered), a copy of every pleading or other document ...


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