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Ebmeyer v. Devore

United States District Court, Seventh Circuit

June 28, 2013

KELLY D. EBMEYER, #S-11623, Plaintiff,
v.
JERRY DEVORE, ZACHARY ROECKMAN, DALE EDDINGS, and JAMES WOODS, Defendants.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

Plaintiff, currently incarcerated at Hill Correctional Center ("Hill"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. His claims arose, however, during his pre-trial detention in the Marion County Jail, and he also complains about medical treatment while he was confined at Graham Correctional Center ("Graham"). Plaintiff claims that Defendants failed to protect him from assault by a fellow jail inmate, and then delayed the knee surgery that he needed as a result of his injuries.

More specifically, Plaintiff claims that while he was confined in the Marion County Jail in 2011, he twice requested Defendant Woods (a guard) to move him to a safer cell block (Doc. 1, p. 5). Plaintiff's second request was on February 22, 2011. Defendant Woods would not allow Plaintiff to speak with Defendant Eddings (supervising guard) or Defendant Roeckeman (jail administrator) about his safety concerns.

On February 26, 2011, Plaintiff was attacked and injured by inmate Burgard. On March 1, 2011, Defendant Woods took Plaintiff to a local hospital for an MRI (Doc. 1, p. 6). Plaintiff requested a wheelchair because he could not walk into the hospital. Defendant Woods told Plaintiff to "quit being a f____ing invalid" and pushed Plaintiff to the ground. This further injured Plaintiff, as he was shackled. A hospital worker brought a wheelchair.

The results of Plaintiff's MRI came in later that day, and he was taken from his cell to a different hospital at 7:00 p.m. for surgery. However, after being prepped for the operation, the emergency room doctor informed Plaintiff they would not perform the surgery due to liability issues related to his being a prisoner. He was treated with pain medications and a full leg brace (Doc. 1, p. 6).

Two days later, on March 3, 2011, Plaintiff was taken to an orthopedic surgeon. She confirmed surgery was needed as soon as possible, and scheduled the operation for the following week. However, on March 9, 2011, Plaintiff was placed in the custody of the Illinois Department of Corrections ("IDOC") and sent to Graham. He claims his surgery was "again cancelled by jail officials" (Doc. 1, p. 6). Approximately six weeks later, Plaintiff had the knee operation on April 20, 2011.

Plaintiff further complains that IDOC officials at Graham authorized only one post-operative physical therapy session when more was needed, and took away his leg brace on June 23, 2011. Since then, he has had extreme pain, instability, numbness, and limited range of motion in the injured knee.

Merits Review Pursuant to 28 U.S.C. § 1915A

Under § 1915A, the Court is required to conduct a prompt threshold review of the complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from an immune defendant. Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable federal cause of action against Defendant Woods for excessive force for shoving Plaintiff to the ground (Count 1), and against Defendant Roeckman for deliberate indifference to medical needs, for delaying Plaintiff's surgery (Count 2). As to Count 2, Plaintiff's general allegation that the surgery he was to have during the week of March 9, 2011, was "cancelled by jail officials, " liberally construed, would seem to point to jail administrator Defendant Roeckman. Further factual development is needed in order to determine whether this claim may be sustained.

However, Plaintiff's allegations regarding Defendants' failure to protect him from the attack (Count 3) fail to state a claim upon which relief may be granted, and shall be dismissed. In addition, Plaintiff has failed to state a cognizable claim for any possible deliberate indifference to his medical needs that took place during his incarceration at Graham (Count 4), because he has not included any Graham officials as defendants in this action.

Dismissal of Count 3

Jail officials have a duty to protect pre-trial detainees from violence caused by other inmates. Borello v. Allison, 446 F.3d 742, 747 (7th Cir. 2006). However, not every harm caused by another inmate translates into constitutional liability for the corrections officers responsible for the prisoner's safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Liability will attach only where the officer was aware that the detainee faced "a substantial risk of serious harm" and "disregard[ed] that risk by failing to take reasonable measures to abate it." Borello, 446 F.3d. at 747 (quoting Farmer, 511 U.S. at 847); see also Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). In order to state a claim for deliberate indifference to a prisoner's safety in the face of a risk of attack from a fellow inmate, the complaint must indicate that the plaintiff made his custodians aware of a specific, impending, and substantial threat to his safety by informing them about a specific threat to his safety. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996). In other words, Defendants had to know that there was a substantial risk that those who attacked Plaintiff would do so, yet failed to take any action in "deliberate indifference" to that danger. See Sanville v. McCaughtry, 266 F.3d 724, 733-34 (7th Cir. 2001). However, conduct that amounts to negligence or inadvertence is not enough to state a claim. Pinkston, 440 F.3d at 889 (discussing Watts v. Laurent, 774 F.2d 168, 172 (7th Cir. 1985)).

In the instant case, Plaintiff does not indicate that he reported to the Defendants any specific threat of harm, either from the inmate who attacked him or from any other prisoners, before he was attacked. Plaintiff states only that he asked to be moved to a safer cell block. This general request does not establish the requisite knowledge on the part of any Defendant to sustain a claim for failure to protect. Plaintiff also alleges that Defendant Woods was negligent. Whether or not this was ...


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