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Wisner v. Ashby

United States District Court, C.D. Illinois

March 6, 2014

FORREST ASHBY, et al., Defendants.


SUE E. MYERSCOUGH, District Judge.

Plaintiff proceeds pro se from his detention in the Rushville Treatment and Detention Center pursuant to the Illinois Sexually Violent Persons Act, 725 ILCS 207/1, et seq.

In a prior order, the Court identified the following claims in this case: 1) excessive force based on the incident which occurred on March 20, 2012; 2) deliberate indifference to the creation of a substantial risk of serious harm; 3) deliberate indifference to Plaintiff=s serious psychiatric need; 4) deliberate indifference to Plaintiff=s need for medical and psychiatric care after the alleged excessive force; and, 5) retaliation for exercising protected First Amendment rights.

The case is now before the Court on Defendants' summary judgment motions. At the summary judgment stage, the evidence is viewed in the light most favorable to the nonmovant, with material factual disputes resolved in the nonmovant's favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists when a reasonable juror could find for the nonmovant. Id.

Of the claims identified above, Plaintiff's responses (d/e's 69, 93), even liberally construed, address only the claims of excessive force and failure to intervene. The Court will, therefore, start with those claims.

The events set forth in the following paragraphs are taken from Plaintiff's deposition testimony and set forth as facts for purposes of this order only. Defendants have a different version of events, but at this stage the Court must accept Plaintiff's version of facts which he personally experienced.

According to Plaintiff, Plaintiff was placed in his room on a two hour "cool down" at the end of the day on March 19, 2012, because Plaintiff had "got into it with another resident." (Pl.'s Dep. p. 90.) A cool down period officially ends when the guard comes to "assess" the resident. Id . p. 93. The next morning, on March 20, 2013, Plaintiff realized that he had not been told that his cool down was over. Plaintiff pressed the intercom button in his room and asked Defendant Sandstrom whether Plaintiff's cool down was over and whether Plaintiff could get breakfast and his medicine. Defendant Sandstrom looked into the matter and then told Plaintiff that since Plaintiff had missed breakfast and his medicine, he would receive neither. Plaintiff asked to speak to a "white shirt"-a guard with more authority than he thought Defendant Sandstrom had. Unbeknownst to Plaintiff, Sandstrom was a "white shirt." Sandstrom told Plaintiff that she was a sergeant and called Plaintiff an asshole. Plaintiff got upset, called Sandstrom a bitch, and walked out of his room, a move which Plaintiff himself calls "unauthorized movement." (Pl.'s Dep. 93).

At this point, Defendant Sandstrom told Plaintiff that she was offering him another two hour cool down. Plaintiff responded, "I'm not even done with the first one, how are you going to offer me a second one?" (Pl.'s Dep. p. 93.) Sandstrom then called a "code, " a call for other guards to come help with the situation. Defendants Teel, Kelly, Hougas, Dougherty, Parsons, Pool, Wear, Mantzke, and Zimmerman came to Plaintiff's unit in response to the code.

Defendant Hougas talked Plaintiff into going back into his room on a two hour cool down. The other guards then began to leave the unit because the situation had been diffused, but, unbeknownst to Plaintiff, Plaintiff's conversation with his roommate about suing over the incident was being broadcast over the intercom. Plaintiff surmises that Defendants heard that conversation, and, in retaliation, came running to Plaintiff's room. According to Plaintiff, he was instructed to turn around and offer his hands for cuffing, an order which he obeyed. After Plaintiff was cuffed, Defendant Kelly pushed Plaintiff into Plaintiff's room and slammed Plaintiff to the floor, hitting Plaintiff's head on a property box and causing injury to Plaintiff's face. Defendant Kelly sat on Plaintiff and kept telling Plaintiff to stop resisting even though Plaintiff was not resisting. An inference arises that Defendants Mantzke, Teel, Wear, and Dougherty were also in Plaintiff's room. Plaintiff's shoes were ripped off his feet, causing injuring to Plaintiff's ankle. Defendants Biermann and Pool were not in the room, but were in positions outside the room which blocked others' views. (Pl.'s Dep. 94-109, 127, 134, 150) Plaintiff was taken to "special management, " which Plaintiff describes as a segregation cell.

Based on Plaintiff's account as described above, the Court cannot rule out a reasonable inference that the Defendants who were in Plaintiff's room used excessive force or were in a position to intervene to stop that excessive force. Additionally, a reasonable inference arises that Defendants Biermann and Pool, by blocking others' views, enabled the excessive force and also failed to intervene. A reasonable inference also arises that Defendant Sandstrom, though not directly involved in the excessive force, may have directed or approved of that excessive force. Summary judgment is, therefore, denied on the excessive force and failure to intervene claims against Defendants Kelly, Mantzke, Wear, Teel, Biermann, Pool, Dougherty, and Sandstrom. Plaintiff testified in his deposition that he no longer wants to pursue a claim against Teel, (Pl.'s Dep. p. 154.), but the Court will wait for written confirmation from Plaintiff.

A claim against these same Defendants for retaliation for Plaintiff's free speech also survives summary judgment, even though Plaintiff does not address the claim in his responses. Plaintiff's deposition testimony allows an inference that the guards considered the situation resolved until the guards heard Plaintiff's talk about suing them. Defendants have a different story, but, the Court cannot rule out a reasonable inference in Plaintiff's favor. Plaintiff stated in his deposition that he intends to withdraw the retaliation claim, (Pl.'s Dep. pp. 170-71), but the Court will wait for written confirmation from Plaintiff.

No reasonable jury could find the other Defendants-Atkinson, Roth, Wilcyznski, Ashby, Baptist, Hammers, Williams, Winters, Tinwalla, Hougas, Parson, and Zimmerman-liable for excessive force, failure to intervene, or retaliation. These Defendants were either not on Plaintiff's unit during the incident or were not in a position where they could see or intervene in the alleged excessive force, by Plaintiff's own account. (Pl.'s Dep. pp. 107-110.); Lewis v. Downey , 581 F.3d 467, 472 (7th Cir. 2009)(bystander liability is premised on a defendant's knowledge that excessive force is being used and a "realistic opportunity to prevent the act from occurring.").

Plaintiff does not respond to the motions for summary judgment on the other claims identified in the prior order-the failure to protect him from a substantial risk of serious harm and the failure to provide him needed psychiatric and medical care after the incident as well as adequate psychiatric care in general. The motions for summary judgment demonstrate that no reasonable jury could find for Plaintiff on these claims.

Plaintiff's failure to protect claim is based on disrespectful comments and offensive name-calling by some of the Defendants who are DHS employees, names like asshole, little bitch, punk, baby, and retard. ( See, e.g., Pl.'s Dep. pp. 93, 122, 164-65.) Plaintiff believes that the remarks encourage residents to treat Plaintiff the same way. (Pl.'s Dep. pp. 164.) However, unprofessional and offensive name-calling does not alone amount to a constitutional deprivation. See, e.g., DeWalt v. Carter , 224 F.3d 607, 614 (7th Cir. 2000)("Standing alone, simple verbal harassment does not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny a prisoner equal protection of the laws."). ...

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