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Brown v. Knisley

United States District Court, Seventh Circuit

January 7, 2014

KENNETH BROWN, Plaintiff,
v.
MICHAEL E. KNISLEY AND LIEUTENANT HAMILTON, Defendants.

MERIT REVIEW OPINION

COLIN STIRLING BRUCE, District Judge.

Plaintiff, proceeding pro se and currently incarcerated in Western Correctional Center, seeks leave to proceed in forma pauperis. This case is before the Court for a review pursuant to 28 U.S.C. § 1915A.

In reviewing the Complaint, the Court accepts the factual allegations as true, liberally construing them in Plaintiff's favor. Turley v. Rednour , 729 F.3d 645, 649 (7th Cir. 2013). However, conclusory statements and labels are insufficient. Enough facts must be provided to "state a claim for relief that is plausible on its face.'" Alexander v. U.S. , 721 F.3d 418, 422 (7th Cir. 2013)(quoted cite omitted).

ALLEGATIONS

Plaintiff alleges that, on or about October 20, 2012, he was in line to receive medication when a discussion began between Plaintiff and Defendant Sergeant Knisley. Plaintiff believed that the discussion was a respectful exchange of information, but Sergeant Knisley perceived otherwise, telling Plaintiff, "Don't fucking talk to me like that." (Complaint, p. 6.) Sergeant Knisley then sprayed mace in Plaintiff's face and tried to force Plaintiff to the floor, even though Plaintiff allegedly had not resisted or disobeyed. During his escort to segregation, Plaintiff was taken to a storage room sink, where Defendant Lieutenant Hamilton and another Lieutenant allegedly forced Plaintiff's head under water in a manner which made Plaintiff feel like he was drowning. Plaintiff told Hamilton that he could not breathe, but Hamilton continued to hold Plaintiff's head under water. Both Lieutenants allegedly tried to break Plaintiff's wrists while removing Plaintiff's handcuffs.

After Plaintiff was placed in segregation, he was allegedly refused paper, pen, and envelopes, preventing him from informing anyone outside the prison about the excessive force, and Plaintiff was not allowed to contact his family for 30 days.

ANALYSIS

Accepting Plaintiff's allegations as true, Plaintiff states an arguable Eighth Amendment claim for excessive force against Sergeant Knisley and Lieutenant Hamilton. Sanchez v. City of Chicago , 700 F.3d 919, 927 n. 3 (7th Cir. 2012)(Eighth Amendment excessive force is the "unnecessary and wanton infliction of pain'"- force applied "maliciously and sadistically for the very purpose of causing harm'" rather than in a "good faith effort to maintain or restore discipline.")(quoted cite omitted). Plaintiff names no other Defendants at this time, though his allegations imply that others were involved. At this point the claim will proceed against Defendants Knisley and Hamilton.

Plaintiff also states an arguable claim that he was prevented from exercising his First Amendment right to send outgoing correspondence. Kaufman v. McCaughtry , 419 F.3d 678 (7th Cir. 2005)("Inmates have a First Amendment right to both send and receive mail...." subject to the prison's legitimate penological concerns.)(citations omitted). Whether the restriction was justified and whether Defendants Knisley and Hamilton were personally responsible for Plaintiff's alleged lack of writing materials and envelopes cannot be determined without a more developed record.

On a separate matter, Plaintiff has filed another petition to proceed in forma pauperis. The petition is unnecessary because Plaintiff is already proceeding in forma pauperis. Plaintiff is advised that 28 U.S.C. § 1915(b)(1) requires the Court to collect the filing fee in installments from Plaintiff's prison account, based on Plaintiff's income, which includes gifts. Lucien v. DeTella , 141 F.3d 773, 776 (7th Cir. 1998)(income under § 1915(b)(2) means all deposits into prison trust account, regardless of source).

Plaintiff has also filed a motion for the Court to seek pro bono counsel on Plaintiff's behalf. In determining whether the Court should attempt to find an attorney to voluntarily take the case, the question is "given the difficulty of the case, does the plaintiff appear competent to litigate it himself?" Pruitt v. Mote , 503 F.3d 647, 654-55 (7th Cir. 2007). Plaintiff already has personal knowledge of the facts relevant to his relatively simple claims. His pleadings demonstrate that he is able to write effectively and that he is competent to proceed pro se in this case.

IT IS THEREFORE ORDERED:

1) Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states an Eighth Amendment excessive force claim and a First Amendment claim that he was prevented from sending outgoing correspondence. This case proceeds solely on the claims identified in this paragraph. Any additional claims shall not be included in the case, except at the Court's discretion on motion by a party for good cause shown or pursuant to Federal Rule of Civil Procedure 15.

2) This case is now in the process of service. Plaintiff is advised to wait until counsel has appeared for Defendants before filing any motions, in order to give Defendants notice and an opportunity to respond to those motions. Motions filed before Defense counsel has filed an appearance will generally be denied as premature. Plaintiff need ...


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