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Claxton H. Williams, Jr.,*Fn1 # N-62439 v. Sgt Jerry Withoft

October 5, 2012

CLAXTON H. WILLIAMS, JR.,*FN1 # N-62439, PLAINTIFF,
v.
SGT JERRY WITHOFT, SGT HEIMAN, ANTHONY LOCKHEAD, GUARD HOOD, MAJOR DURHAM, MAJOR WESTERMAN, REBECCA COWANS, DAVID REDNOUR, JACKIE MILLER, TERRI ANDERSON, MAGID FAHEEM, R. POLLION, NIKKI MALLEY, AND J. SHEPHERD,*FN2 DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, currently incarcerated at Menard Correctional Center ("Menard"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. He claims that on March 22, 2011, he was assaulted by several guards and then denied medical attention for his injuries, in retaliation for a lawsuit he filed against one of them in this Court. Plaintiff also asserts that he was denied medical treatment following a stroke he suffered in March 2012.

Specifically, on March 22, 2011, Plaintiff was attempting to hand his dirty jumpsuit to Defendant Lockhead through the food slot in the door of his cell, when Defendant Withoft grabbed Plaintiff's right hand (Doc. 1, p. 13). Defendant Hood joined Defendant Withoft in pulling on Plaintiff's arm until it became numb. Defendant Withoft told Plaintiff, "You won't be filing any more lawsuits with this hand" (Doc. 1, p. 14). Plaintiff took this as a reference to his jury trial that had just resulted in a verdict for Defendants on March 16, 2011 (S.D. Ill. Case No. 06-cv-772-MJR-SCW). Defendant Withoft was among the parties sued by Plaintiff in that action (Doc. 1, pp. 14, 18). Plaintiff tried to use his left hand to break free, whereupon Defendant Lockhead grabbed that hand, and Defendant Heiman put handcuffs on both Plaintiff's wrists. Defendant Heiman then pulled on the cuffs with such force that he sat down on the floor, yanking Plaintiff's left shoulder and head against the inside of the steel cell door. Plaintiff was in unbearable pain, and something "popped" in his left shoulder and neck. Defendant Heiman removed the cuff from Plaintiff's right hand and attached it to the bars. Defendant Lockhead then slammed the food slot door against Plaintiff's left hand while Defendants Hood and Withoft twisted his right hand and banged it against the food slot. While they were assaulting Plaintiff, Defendants Withoft and Heiman yelled "you're in prison for a sex crime" (Doc. 1, pp. 19-20). This was untrue, and Plaintiff viewed this public statement as an attempt to induce other inmates to harm him. During this entire episode, Defendants Durham and Westerman looked on without intervening to stop the assault. The Defendants later conspired to file a false disciplinary report over the incident (Doc. 1, p. 17), and Plaintiff was punished with three months of C-grade and commissary restriction as a result (Doc. 1-1, p. 9).

When the attack ceased, Plaintiff told Defendant Durham that he needed a doctor, to which Defendant Durham responded with an expletive (Doc. 1, p. 14). Plaintiff did receive x-rays and pain medication over one month later (Doc. 1, p. 20), but indicates he was not taken to the doctor in the time immediately following the incident (Doc. 1, pp. 14, 23). Plaintiff was scheduled to be transferred to Stateville Correctional Center ("Stateville") on the day after the attack (Doc 1, p. 13). Plaintiff's exhibit at Doc. 1-1, p. 12, indicates that this transfer was temporary, as Plaintiff was returned to Menard on March 30, 2011. Plaintiff had x-rays at Menard in April and May 2011, and he complains that Defendant Faheem (the Menard doctor) failed to send him to an outside neurologist in June 2011 (Doc. 1, p. 20).

Plaintiff faults Defendants Cowans (grievance officer), Rednour (warden), and Miller (Administrative Review Board) for "enhancing" the conspiracy to cover up the attack, because they failed to respond to his grievances over the incident (Doc. 1, p. 17).

In addition to participating in the attack on Plaintiff, Defendant Withoft retaliated against Plaintiff by assigning him to cells with mentally ill inmates who provoked fights with Plaintiff. Further, Defendants Withoft and Heiman repeatedly assigned Defendant Lockhead to escort Plaintiff on his medical passes, during which Defendant Lockhead inflicted pain on Plaintiff by excessively tightening the handcuffs behind Plaintiff's back (Doc. 1, p. 18-19).

Plaintiff's complaint also includes a section purporting to show that he is in imminent physical danger pursuant to 28 U.S.C. § 1915(g).*fn3 Here, he raises entirely unrelated claims that he was denied proper medical treatment by Defendant Shepherd and others following a stroke he suffered on March 6, 2012, because they refused to honor the orders of an outside specialist to send Plaintiff back to that doctor for follow-up care, stopped his medication, and refused to give him rehabilitative physical therapy (Doc. 1, p. 21). Further, Plaintiff was attacked by a fellow inmate on August 5, 2012, while a guard (Sgt. Evilizer, who is not among the named Defendants) looked on and failed to intervene (Doc. 1, p. 22). Finally, he complains that guard Kevin Murray (also not included as a Defendant) stole his special-ordered shoes that he needs to help him walk after the stroke (Doc. 1, p. 21). Plaintiff seeks injunctive relief in order to obtain post-stroke medical care, and prays for damages for the other constitutional violations.

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 Defendants Withoft, Heiman, Lockhead, Hood, Durham, and Westerman for excessive force (Count 1), deliberate indifference to medical needs (Count 2), and conspiracy to falsify a disciplinary report against Plaintiff following their attack on him (Count 3). In addition, the claim against Defendants Withoft, Heiman, and Lockhead for retaliation (Count 4) shall receive further consideration.

Plaintiff fails to state a claim, however, against Defendants Cowans, Rednour, and Miller, for their failure to respond to his grievances (Count 5). He argues that their refusal to answer numerous grievances "enhanced" the conspiracy by the guards who attacked him, to cover up the incident by falsifying their report. First, there is no constitutional violation where prison officials fail to follow the administrative grievance procedure, because the Constitution requires no procedure at all. See Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1995) ("a state's inmate grievance procedures do not give rise to a liberty interest protected by the Due Process Clause"); Maust v. Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir. 1982). Thus, even if these Defendants' handling of his grievances amounted to a conspiracy (a proposition which the Court finds highly dubious), their failure to respond to the grievances or to rule in Plaintiff's favor does not implicate any constitutional right. See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (plaintiff's argument that conspiracy by prison officials to deny administrative review of his grievances by dismissing them was frivolous where plaintiff had access to the grievance procedure but he did not obtain the outcome he desired). Accordingly, Count 5 shall be dismissed with prejudice.

Likewise, Plaintiff fails to state a claim against Defendants Faheem or Pollion for deliberate indifference to his medical needs following the guards' attack on him (Count 6). The only mention of Defendant Pollion in the complaint is that s/he told Plaintiff he had to see Dr. Faheem. Nowhere does Plaintiff indicate that Defendant Faheem was responsible for any delay in providing medical attention to him after the guards' assault; instead it was Defendant Durham and the other guards who refused or failed to get Plaintiff to a doctor. Plaintiff was then in Stateville for the next week. Plaintiff was given x-rays of his injured back and shoulder in April and May 2011, and in June 2011 Defendant Faheem prescribed pain medication for him. Plaintiff claims that Defendant Faheem refused to send him to an outside neurologist, but also indicates that Defendant Faheem may have sought permission to do just that, when he told Plaintiff that he needed to get approval from Wexford for such a referral (Doc. 1, p. 20). Either way, Defendant Faheem provided treatment to Plaintiff, and nothing in the complaint indicates that he disregarded a known risk of harm to Plaintiff from a serious medical condition. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (to state a claim for deliberate indifference, a prisoner must show that he had an objectively serious medical need, and that the defendant knew of and disregarded an excessive risk to his health). The Eighth Amendment does not give prisoners entitlement to "demand specific care" or "the best care possible," but only requires "reasonable measures to meet a substantial risk of serious harm." Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Count 6 for deliberate indifference against Defendants Faheem and Pollion shall be dismissed.

Plaintiff does, however, state a claim for deliberate indifference to his need for follow-up care for the stroke he suffered in March 2012 (Count 7). Defendant Shepherd (the Menard medical director), refused to follow the outside specialist's order to return Plaintiff to him for care following Plaintiff's discharge from the hospital (Doc. 1, p. 21). Defendant Shepherd also stopped Plaintiff's pain and nerve medication, and refused to provide him with physical therapy. Plaintiff also blames Dr. Dennis Larson, Louis Shicker (the IDOC medical director) and Wexford Health Sources, Inc., for these omissions, although he failed to include them in the list of Defendants at the beginning of the complaint. While this claim merits further review, it cannot proceed in the current action.

In George v. Smith, 507 F.3d 605 (7th Cir. 2007), the Seventh Circuit emphasized that unrelated claims against different defendants belong in separate lawsuits, "not only to prevent the sort of morass" produced by multi-claim, multi-defendant suits "but also to ensure that prisoners pay the required filing fees" under the Prison Litigation Reform Act. George, 507 F.3d at 607, (citing28 U.S.C. § 1915(b), (g)). This claim for deliberate indifference to the May 2012 stroke, against Defendant Shepherd and the other medical providers, is unrelated to the claims in Counts 1, 2, 3, and 4, that arose from the guards' attack on Plaintiff in March 2011. Therefore, Count 7 shall be severed into a new action as described below.

Similarly, Plaintiff's claims that Sgt. Evilizer failed to protect him from an ongoing attack by a fellow inmate in August 2012 (Count 8), and that Guard Kevin Murray stole his shoes (Count 9), are unrelated to any of the other claims discussed above (Doc. 1, p. 21-22). Plaintiff does not indicate that any of the other named Defendants were involved in the August 2012 incident (Count 8). While the inmate attacked Plaintiff, Sgt. Evlizer looked on and laughed, then later hit Plaintiff on his injured shoulder after the attack (Doc. 1, p. 22). While a guard is not required to place himself in danger to stop an inmate-on-inmate attack, see Guzman v. Sheahan, 495 F.3d 852, 858 (7th Cir. 2007), at this stage, Plaintiff's failure to protect and excessive force claims merit further review. Pursuant to George v. Smith, these claims must also be severed into a separate action.

However, Count 9, regarding the theft of Plaintiff's shoes, does not state a constitutional claim. The only constitutional right that might be implicated here is Plaintiff's right, under the Fourteenth Amendment, to be free from deprivations of his property by state actors without due process of law. To state a claim under the due process clause of the Fourteenth Amendment, Plaintiff must establish a deprivation of liberty or property without due process of law; if the state provides an adequate remedy, Plaintiff has no civil rights claim. Hudson v. Palmer, 468 U.S. 517, 530-36 (1984) (availability of damages remedy in state claims court is an adequate, post-deprivation remedy). The Seventh Circuit has found that Illinois provides an adequate post-deprivation remedy in an action for damages in the Illinois Court of Claims. Murdock v. Washington, 193 F.3d ...


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