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Oliver v. Perez

United States District Court, C.D. Illinois, Peoria Division

June 2, 2015

HAROLD OLIVER, Plaintiff,
v.
TIMOTHY PEREZ, et al. Defendants.

MERIT REVIEW OPINION

SUE E. MYERSCOUGH, District Judge.

Plaintiff, proceeding pro se and presently incarcerated at Hill Correctional Center, brings the present lawsuit pursuant to 42 U.S.C. § 1983 alleging an Eighth Amendment failure to protect claim. Plaintiff's Petition to Proceed In Forma Pauperis (Doc. 2) was denied as Plaintiff has accrued three strikes under 28 U.S.C. § 1915(g). Plaintiff did not allege an imminent danger of serious physical injury and, therefore, was ordered to pay the filing fee in full within 28 days. Plaintiff has complied with the Court's order, and the matter now comes before this Court for merit review under 28 U.S.C. §1915A. In reviewing the complaint, the Court takes all 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) (internal citation omitted).

FACTS

Plaintiff alleges that he was attacked by his cellmate in July 2014. Plaintiff alleges that his cellmate, an inmate with a known propensity for violence against other inmates, hit Plaintiff in the head several times with a "fan." During the attack, Plaintiff alleges that Defendants Perez, Morrow, Goad, Carothers, Sheppard, Millard, and Barclay stood outside Plaintiff's cell. Rather than stop the attack, Plaintiff alleges that these defendants did nothing but laugh and keep the door to Plaintiff's cell locked while the attack ensued. When Plaintiff pleaded with the correctional officers to open the door, Plaintiff alleges that Defendant Morrow sprayed Plaintiff in the face with a chemical agent. The alleged assault continued, and upon another attempt to plead with the officers to open his door, Plaintiff alleges he was once again sprayed in the face with chemical agent, this time by Defendant Goad. Plaintiff alleges he suffered serious physical injury as a result of the alleged attack.

ANALYSIS

Failure to Protect

To succeed on a failure to protect claim, a plaintiff must show (1) "that he is incarcerated under conditions posing a substantial risk of serious harm, " and, (2) prison officials acted with "deliberate indifference" to that risk. Farmer v. Brennan, 511 U.S. 825, 834 (1994). For purposes of satisfying the first prong, "it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk." Id. at 843. A prison official acts with deliberate indifference if he "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id . A plaintiff "normally proves actual knowledge of impending harm by showing that he complained to prison officials about a specific threat to his safety." Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996) (quoting McGill v. Duckworth, 944 F.3d 344, 349 (7th Cir. 1991)). Liability attaches where "deliberate indifference by prison officials effectively condones the attack by allowing it to happen...." Haley v. Gross, 86 F.3d 630, 640 (7th Cir. 1996).

Plaintiff alleges that he was assigned to share a cell with an inmate with a known propensity for violence against other inmates. When the risk of harm materialized, Plaintiff alleges that the correctional officers refused to intervene and subjected Plaintiff to further harm. Therefore, the Court finds that Plaintiff has stated a claim for failure to protect against Defendants Perez, Morrow, Goad, Carothers, Sheppard, Millard, and Barclay.

Excessive Force

In Eighth Amendment claims for excessive force, the relevant inquiry is "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson v. McMillian, 503 U.S. 1, 6 (1992) (citation omitted); see DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000) (applying Hudson). In making this determination, the court may examine several factors, "including the need for an application of force, the relationship between that need and the force applied, the threat reasonably perceived by the responsible officers, the efforts made to temper the severity of the force employed, and the extent of the injury suffered by the prisoner." Dewalt, 224 F.3d at 619. Significant injury is not required, but "a claim ordinarily cannot be predicated on a de minimis use of physical force." Id. at 620 (citing Hudson, 503 U.S. at 9-10). "Thus, not every push or shove by a prison guard violates a prisoner's constitutional rights." Id.

The use of chemical agents on its own does not violate the Constitution. Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984) ("The use of mace, tear gas, or other chemical agent of the like nature when reasonably necessary to prevent riots or escape or subdue recalcitrant prisoners does not constitute cruel and unusual punishment."). Constitutional liability attaches only when prison officials use chemical agents "in quantities greater than necessary or for the sole purpose of punishment or the infliction of pain." Id.

Plaintiff alleges that he was sprayed in the face with a chemical agent on two separate occasions, each time while pleading with correctional officers to stop the alleged attack. From these facts, the Court cannot rule out a constitutional claim against Defendants Morrow and Goad for excessive force.

Remaining Defendants

Plaintiff does not mention Defendants Wood, Buckley, or Ramage in the body of his Complaint. Plaintiff has not alleged any specific allegations against these defendants or any facts from which the Court can infer potential ...


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