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Foutch v. Zimmer

United States District Court, S.D. Illinois

January 6, 2015

BRUCE W. FOUTCH, II #B-87933, Plaintiff,
v.
JEREMY ZIMMER, Defendant.

MEMORANDUM AND ORDER

MICHAEL J. REAGAN, District Judge.

Plaintiff Bruce Foutch, Jr., an inmate who is currently incarcerated at Western Illinois Correctional Center, brings this civil rights action pursuant to 42 U.S.C. § 1983 against Defendant Jeremy Zimmer, an officer with the Dupo Police Department in Dupo, Illinois. In the complaint, Plaintiff alleges that Defendant Zimmer caused him to sustain permanent injuries by shooting Plaintiff with a taser gun on July 28, 2013 (Doc. 1, p. 4). Plaintiff now sues Defendant Zimmer for the unconstitutional use of excessive force against him. Plaintiff seeks monetary damages (Doc. 1, p. 5).

Merits Review Under 28 U.S.C. § 1915A

This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to promptly screen prisoner complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).

An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross "the line between possibility and plausibility." Id. at 557. Conversely, a complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009). After carefully considering the allegations, the Court finds that Plaintiff's complaint survives preliminary review under Section 1915A.

The Complaint

According to the complaint, Plaintiff and a friend stored personal property in the Red Roof Storage Units located in Dupo, Illinois (Doc. 1, p. 4). The owner allegedly sold this property without their consent. Upon discovering this, Plaintiff and his friend contacted the Dupo Police Department to report the incident on July 28, 2013. Defendant Zimmer reported to the facility to take Plaintiff's statement. While doing so, the storage unit owner also arrived. Plaintiff was involved in a "brief altercation" with the owner (Doc. 1, p. 4).

As Plaintiff headed to his vehicle, Defendant Zimmer used a taser gun to shoot him. One the gun's prongs became embedded in Plaintiff's forehead, and the other was embedded in his shoulder. When Defendant Zimmer activated the gun, Plaintiff fell to the ground and hit his head on a rock. He sustained a skull fracture.

Plaintiff was taken to Barnes-Jewish Hospital in Saint Louis, Missouri. There, he underwent brain surgery. A portion of Plaintiff's skull was removed and replaced with three titanium plates. Plaintiff received thirty-one staples that stretched from his forehead to his ear. He now has a "major scar, daily headaches, s[ei]zures, and major memory loss" (Doc. 1, p. 4).

Plaintiff sues Defendant Zimmer for the unconstitutional use of excessive force. He seeks monetary damages.

Discussion

After carefully considering the allegations, the Court finds that the complaint states a colorable excessive force claim (Count 1) against Defendant Zimmer. A claim that excessive force was used by a police officer against a citizen is analyzed under the Fourth Amendment, which prohibits unreasonable searches and seizures of the person. U.S. v. Collins, 714 F.3d 540, 543 (7th Cir. 2013) (citing Graham v. Connor, 490 U.S. 386, 394-95 (1989); Marion v. City of Corydon, Ind., 559 F.3d 700, 705 (7th Cir. 2009)). "Whether the force used to effect a seizure is excessive depends on the totality of circumstances under an objective reasonableness standard." Marion, 559 F.3d at 705. As the Seventh Circuit explained in Graham, "the question is whether the officers' actions are objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. (quoting Graham, 490 U.S. at 397). See also Abbott v. Sangamon County, Ill., 705 F.3d 706, 725 (7th Cir. 2013) (describing the quantum of force exacted by a taser that is deployed in dart mode as compared to drive stun mode). Further, the Seventh Circuit has held that "even though it is generally nonlethal, the use of a taser is more than a de minimus application of force.'" Abbott, 705 F.3d at 726 (quoting Lewis v. Downey, 581 F.3d 467, 475 (7th Cir. 2009)). At this early stage, the complaint suggests that Defendant Zimmer subjected Plaintiff to excessive force when he used the taser gun in dart mode to shoot Plaintiff in the head and shoulder on July 28, 2013. Accordingly, Plaintiff shall be allowed to proceed with Count 1 against Defendant Zimmer.

Pending Motions

Plaintiff's motion for service of process at government expense (Doc. ...


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