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Briseno v. Bukowski

United States District Court, C.D. Illinois

May 12, 2015

JUAN BRISENO, Plaintiff,


JOE BILLY McDADE, District Judge.

Plaintiff, proceeding pro se and incarcerated in the Jerome Combs Detention Center, seeks leave to proceed in forma pauperis. The case is before the Court for a merit review pursuant to 28 U.S.C. ยง 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).


On August 26, 2014, Plaintiff was in the dayroom of the Jerome Coombs Detention Center when a fight broke out between two detainees. Plaintiff tried to break up the fight, whereupon another detainee came "out of nowhere" and started attacking Plaintiff. (Aff. of Demetrius Moore, attached to Complaint; Complaint, p. 4.) Plaintiff allegedly tried to escape the attack by running to a door, but Officers Roberts and Paquette refused to open the door. Plaintiff called repeatedly for help while the detainee continued to strike Plaintiff about the face with closed fists. After a "very long time, " Officer Roberts came into the dayroom and tasered Plaintiff in the stomach with no warning, even though Plaintiff had not been the aggressor and had not disobeyed any orders. Officers Perkins, O'Neil, Paquette, and Tobeck allegedly stood by and failed to intervene to prevent Officer Roberts' tasering. (Complaint, paras. 1-3.)

Plaintiff also alleges that Sheriff Bukowski fosters an environment which condones or turns a blind eye to the kind of alleged excessive force used on Plaintiff by Officer Roberts. Plaintiff alleges that:

There is no effective training, oversight or accountability of J.C.D.C. staff. There's a lack of professionalism and the staff are violent, sadistic, cruel and racist. These c/o's feel that they are justified to shoot a pre-trial detainee at any time for any reason with a taser....

(Complaint, para. 7.) Plaintiff alleges that officers are permitted to taser a detainee if the detainee is wearing his identification badge incorrectly and for other minor infractions. The Jail administration allegedly conceals the unlawful acts of the Jail's employees, especially unlawful acts as to detainees with mental illnesses. (Complaint, para. 8.) Because of Officer Roberts' tasering, Plaintiff's anxiety has worsened. He allegedly has trouble sleeping and wakes up in "cold sweats." (Complaint, para. 4.)


Plaintiff does not expressly state that he was a pretrial detainee when the incident occurred. For purposes of this order, the Court assumes that Plaintiff was a pretrial detainee, rather than an inmate serving his conviction. The difference is important because the legal standard for an excessive force claim under the Fourteenth Amendment, which applies to detainees, is arguably different than the legal standard for an excessive force claim under the Eighth Amendment, which applies to inmates serving their sentences. Liability arises under the Eighth Amendment when an officer uses force "maliciously and sadistically for the very purpose of causing harm." Santiago v. Walls, 599 F.3d 749, 757 (7th Cir. 2010)(affirming dismissal of Eighth Amendment excessive force claim at merit review stage where Plaintiff admitted he had been fighting and officers had used mace and handcuffs). A Fourteenth Amendment excessive force claim is based on a more objective approach, though the officer's subjective intent is still relevant. Kingsley v. Hendrickson, 744 F.3d 443, 453 (7th Cir. 2014)(Fourteenth Amendment excessive force claim requires at least reckless intent).

A failure-to-protect claim, in contrast, is essentially the same standard whether the plaintiff is a pretrial detainee or an inmate. For a failure-to-protect claim, the allegations must allow a plausible inference that the defendants were deliberately indifferent to a known and substantial risk of serious harm. Brown v. Budz, 398 F.3d 904, 909, 913 (7th Cir.2005)(analyzing civil detainee's failure-to-protect claim using Eighth Amendment standards). Deliberate indifferences means that the defendants knew about and consciously disregarded a substantial risk of serious harm, failing to take reasonable measure to deal with that risk. Id. at 914.

At this point Plaintiff's allegations allow a plausible inference that Officer Roberts used excessive force. According to Plaintiff, Officer Roberts tased Plaintiff, even though Plaintiff posed no security risk, did not disobey any orders, and was being attacked. Additionally, a plausible failure-to-protect claim is stated against Officers Roberts and Paquette, who allegedly watched while Plaintiff was attacked and refused to allow Plaintiff out of the dayroom or quickly enter the dayroom to stop the attack. A developed factual record at summary judgment may show otherwise, but the Court believes dismissal of these two claims would be premature. However, no allegations suggest that Officers Perkins, O'Neil, or Tobeck watched while Plaintiff was attacked, so no failure-to-protect claim proceeds against them at this point.

Plaintiff asserts that Officers Perkins, O'Neil, Tobeck, and Paquette failed to intervene to stop Officer Roberts' alleged excessive force. A failure to intervene claim arises only if the officers at the scene knew that Officer Roberts was going to use excessive force and had a realistic opportunity to prevent that excessive force. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014)(no failure to intervene claim where other officers had no time to stop one alleged act of excessive force). According to Plaintiff's own allegations and the affidavits attached to the complaint, Officer Roberts came through the door, "said not one word or warning to anyone, " (Complaint, para. 2), and tasered Plaintiff once in the stomach. These allegations do not allow a plausible inference that the other officers had a reasonable opportunity to stop Officer Roberts from tasing Plaintiff. At this point, Plaintiff's failure to intervene claim will be dismissed, without prejudice.

As to Sheriff Bukowski, he was not present during the incident. However, Plaintiff alleges that Sheriff Bukowski has implemented a policy of condoning or turning a blind eye to the unnecessary use of tasers against detainees and has failed to train his employees on the ...

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