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Terry C. Johnson (#888114 v. County of Cook

May 3, 2013

TERRY C. JOHNSON (#888114)
v.
COUNTY OF COOK, ET AL.



Name of Assigned Judge THOMAS M. DURKIN Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT:

The plaintiff's motion for leave to proceed in forma pauperis [#5] is denied. The complaint is summarily dismissed on initial review pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state an actionable civil rights claim. The case is terminated. The clerk is directed to mail a copy of this order to Cook County Sheriff Thomas Dart / 50 W. Washington Street / Chicago, Illinois 60602. Sheriff Dart may wish to investigate the plaintiff's concerns to determine whether action on the part of the Sheriff's Office may be warranted.

O [For further details see text below.] Docketing to mail notices.

STATEMENT

The plaintiff, a civil detainee in the custody of the Illinois Department of Human Services, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff claims that the defendants, state and county employees, violated the plaintiff's constitutional rights by subjecting him to physical and verbal harassment (or by failing to intervene in the presence of the alleged mistreatment). For the reasons stated in this order, the plaintiff's motion for leave to proceed in forma pauperis is denied and the case is summarily dismissed on preliminary review pursuant to 28 U.S.C. § 1915(e)(2)(B).

Facts

The plaintiff alleges that on March 30, 2011, he was transported from the Rushville Treatment and Detention Facility to the Cook County Circuit Court pursuant to a writ. Defendants Felds, Moody, Markley, Daughter, and other DHS security therapist aides (hereinafter, "STAs") accompanied the plaintiff to court.

As the plaintiff and other detainees sat shackled in a small cubicle, defendant Idris, a Cook County correctional officer, arrived with another prisoner. Idris began berating the other prisoner. The plaintiff and the other inmates in the cubicle, along with a second officer (defendant Reed), observed Idris' outburst but neither said nor did anything. According to the plaintiff, Idris had a history of attacking prisoners before while under the influence of alcohol.

At some point Idris asked the STAs from which facility they had come. The STAs reported that they were from Rushville. This revelation prompted Idris to begin calling the plaintiff and the other occupants of the cubicle "baby rapists," as well as derogatory racial and homophobic epithets. He additionally threatened to "fuck [them] up," entering the cell as he did so. None of the other defendants attempted to prevent Idris from entering the cubicle.

Idris, reeking of alcohol, approached the fully restrained plaintiff, grabbed him by the handcuffs, and pulled him toward the officer [presumably preparatory to striking him]. Only at that point did the other defendants react. They rushed into the cell, forced Idris to relinquish his grip on the plaintiff, and removed him from the cubicle.

Notwithstanding his lack of physical injury, the plaintiff claims to have suffered a great deal of physical and emotional distress on account of the incident.

Analysis

Even accepting the plaintiff's allegations as true, the court finds that the complaint fails to state a federal claim. "Not 'every malevolent touch by a prison guard gives rise to a federal cause of action.'" Wilkins v. Gaddy, 559 U.S. 34, 130 S. Ct. 1175, 1178 (2010) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)). The Constitution "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." Wilkins, 130 S. Ct. at 1178, quoting Hudson, 503 U.S. at 9. "An inmate who complains of a 'push or shove' that causes no discernible injury almost certainly fails to state a valid excessive force claim." Wilkins, 130 S. Ct. at 1178 (citation omitted). If defendant Idris drunkenly entered the plaintiff's holding cell with the intent to do harm, then his conduct was unacceptable and ...


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