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Perez v. Evoldi

United States District Court, S.D. Illinois

February 13, 2015

JESSE R. PEREZ, #R44289, Plaintiff,


MICHAEL J. REAGAN, Chief District Judge.

Plaintiff Jesse Perez, an inmate who is currently incarcerated at Menard Correctional Center ("Menard"), brings this action pursuant to 42 U.S.C. § 1983 (Doc. 1). In the complaint, Plaintiff claims that he was assaulted twice at Menard on March 16, 2013. Menard's medical staff refused to treat his injuries, after learning that they resulted from a staff assault. Plaintiff was also issued a disciplinary ticket, without notice, and placed in segregation for three months, following an unfair disciplinary hearing. Plaintiff now sues ten known[1] and various unknown[2] Menard officials for violating his rights under the First, Eighth, and Fourteenth Amendments. He also asserts tort claims against Defendants under Illinois law. Plaintiff seeks monetary damages (Doc. 1, pp. 8-9).

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). The complaint survives preliminary review under this standard.

The Complaint

Plaintiff is a long-term general population inmate at Menard. Without warning on March 16, 2013, Plaintiff was informed that he would be going to segregation (Doc. 1, p. 3). Soon thereafter, Sergeant Evoldi, Sergeant Ealey, C/O Swisher, and C/O John Doe ##1-4 entered Plaintiff's cell, handcuffed him behind his back, and escorted him out of his cell (Doc. 1, p. 3). Instead of segregation, however, Plaintiff was taken to a shower. While John Doe ##1-2 forced Plaintiff to face the wall, the others slapped, punched, and elbowed him repeatedly in his head and back. They also hit him in the thighs and groin, while calling him names. Afterward, they refused his requests for medical attention.

The same individuals then escorted Plaintiff to a caged visitation area (Doc. 1, p. 4). Once there, they assaulted him a second time, by punching Plaintiff in his hip, side, and back while he was still handcuffed. Plaintiff was warned that he would face a more severe beating if he told anyone what happened. He was then stripped of his clothing and given a segregation jumpsuit to wear. Plaintiff's requests for medical care were, once again, denied.

On March 18, 2013, Plaintiff filed a grievance by placing it in the institutional mail. He complained about the assault and the denial of medical care. The following day, he was called to appear before Menard's adjustment committee. On the way there, Plaintiff asked C/O Kempler for medical care, but C/O Kempler ignored his request.

At the adjustment committee hearing on March 19, 2013, Plaintiff informed Lieutenant Scott and C/O Vasquez, two members of the adjustment committee, that he was still in need of medical care for injuries that he sustained in the staff assault six days earlier. Instead of medical care, however, Plaintiff was given a hearing on disciplinary charges, without receiving prior notice of those charges, an opportunity to prepare his defense, or an opportunity to call witnesses. He was found guilty of the charges and punished with three months in segregation, demotion to C-grade status, and commissary restriction (Doc. 1, p. 5). Warden Harrington[3] affirmed the decision.

Plaintiff sought medical treatment for the injuries he sustained in the assault. Plaintiff wrote to and spoke with Counselors Nippe and Phonix about the assaults and his need for medical care on March 20, 2013. They "did nothing" (Doc. 1, p. 5). He met with Nurse Lang on March 20, 2013, and with Doctor Shearling on March 23, 2013 (Doc. 1, p. 5). However, they both refused to treat his injuries, after learning how he received them.

Plaintiff now sues Defendants Evoldi, Ealey, Swisher, Kempler, Vasquez, Scott, Lang, Shearling, Phonix, Nippe, John Doe ##1-4 (correctional officers), John Doe #5 (doctor), and Jane Does (nurses) for conspiring to violate his rights under the First, Eighth, and Fourteenth Amendments. He also asserts Illinois tort claims against Defendants for assault, battery, and medical negligence. Plaintiff seeks monetary damages.


To facilitate the orderly management of future proceedings in this case, and in accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court finds it appropriate to organize the claims in Plaintiff's pro se complaint into nine separate counts, as set forth below.

Count 1: Eighth Amendment excessive force claim against Defendants arising from Plaintiff's two assaults on March 16, 2013;
Count 2: Eighth Amendment failure to protect claim against Defendants;
Count 3: Eighth Amendment deliberate indifference to medical needs claim against Defendants for failing to treat Plaintiff's chronic pain and his leg, rib, and back injuries, all of which resulted from the assaults;
Count 4: Fourteenth Amendment due process claim against Defendants arising from Plaintiff's unfair disciplinary hearing;
Count 5: Fourteenth Amendment due process claim against Defendants for mishandling Plaintiff's grievances;
Count 6: First Amendment retaliation claim against Defendants;
Count 7: Civil conspiracy claim against Defendants for conspiring to deprive him of his constitutional rights;
Count 8: Illinois assault and battery claim against Defendants arising from the two assaults of Plaintiff on March 16, 2013; and
Count 9: Illinois medical negligence claim against Defendants for refusing to treat the injuries that Plaintiff sustained during the assaults on March 16, 2013.

The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these claims ...

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