United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. Durkin, United States District Judge
Glenn Verser was an inmate in the custody of the Illinois
Department of Corrections when he brought this pro
se Section 1983 lawsuit alleging that Defendants
violated his constitutional rights. Currently before the
Court are two motions for summary judgment, one filed by the
correctional officer defendants (Smith, Nickerson, Fredericks
and Myles), and one filed by the medical defendant
(Schwarz). See R. 148, 153. Plaintiff has responded
to both motions (R. 159, 161). For the reasons stated herein,
Defendants' motions are granted.
following facts are taken from the record and presented in
the light most favorable to Plaintiff, the non-moving party,
and all reasonable inferences are drawn in his favor.
Ricci v. DeStefano, 557 U.S. 557, 586 (2009).
10, 2012, Verser was an inmate temporarily housed at the
Stateville Northern Reception and Classification Center
(“NRC”). That morning, he was to be transported
on a court writ from the NRC to Cook County Circuit Criminal
Court. None of the defendants have any recollection of the
events at issue, which happened more than four years ago.
Therefore, the Court must rely on Verser's account of
to Verser, he was in the holding cell waiting to be put on
the bus for transport to court when Officer Myles approached
him and indicated she was about to restrain him using a
single pair of handcuffs and a black box. Verser informed
Officer Myles that he had a medical permit allowing the use
of double cuffs. Verser carried a copy of the medical
permit with him, and he showed it to Officer Myles. Officer
Myles informed her supervisor, Officer Nickerson, about
Verser's medical permit. Verser showed Nickerson the
permit, who then placed a telephone call to Defendant
Schwarz. Schwarz is employed by Wexford Health Sources, Inc.
as a Physician Assistant (“PA”) at the NRC.
Nickerson explained to Schwarz that Verser had a medical
permit and he described the permit to her over the telephone
See R. 155-2 at 11. Verser was standing next to
Nickerson when this telephone conversation took place, but he
could not hear Schwarz's original response. Id.
Nickerson asked Schwarz to repeat what she had said and then
held the phone to Verser's ear. Id. at 9, 11.
Verser heard Schwarz say “we don't honor medical
permits in Stateville.” Id.
was deposed twice in this case, approximately one year apart.
At his first deposition, Verser was very specific that he had
not yet been handcuffed when Nickerson made the phone call to
Schwarz, and that the handcuffing took place after Nickerson
hung up the phone and directed Officer Myles to restrain
Verser according to the usual practice. See R. 155-2
at 16. At this point, Officer Myles cuffed Verser's hands
in the front using a single pair of handcuffs. Verser was not
asked about Officer Smith at this first deposition. At his
second deposition, Verser again was very specific but this
time testified that he already was wearing the handcuffs when
Nickerson made the phone call to Schwarz. He stated that he
showed Officer Myles the medical permit but she did not
acknowledge it and instead continued to place the handcuffs
on him. See R. 155-3 at 4, 6. Verser testified that
as Myles was putting on the handcuffs, Officer Smith
approached and squeezed the handcuffs tighter, saying
“that's what you get for suing Malone.” The
reference to Malone was to another correctional officer
against whom Verser had filed an earlier § 1983 claim
arising out of the 2009 handcuffing incident. See
footnote 3. Verser testified that he did not say anything to
Officers Smith or Myles about Smith's comment or
tightening of the handcuffs. Instead, he called the medical
permit to the attention of Nickerson. Id. at 7.
After Nickerson made the phone call to Schwarz and told
Verser his medical permit could not be honored, id.
at 4, Verser complained to Officer Nickerson that the
handcuffs were too tight. Id. at 6. Officer
Nickerson checked the cuffs, and told Officer Myles to loosen
them. Id. at 7, 4. According to Verser, Officer
Myles ignored Officer Nickerson's order, and Officer
Nickerson reacted by telling Verser that he would loosen the
handcuffs once Verser got on the bus. Id. at 5.
Myles was assigned to accompany Verser to court. Verser
testified that he continued to complain to Officer Myles
throughout the day that the handcuffs were too tight.
Id. at 6. He also complained to the state court
judge before whom he appeared and to other correctional
officers, including Nickerson, Smith, and Frederickson.
Id.; see also R. 155-2 at 20. None of his complaints
resulted in any action being taken to loosen the handcuffs.
He remained handcuffed for approximately nine hours until he
got back to the NRC. Verser testified that the next day he
suffered from pain in his hand, and that he asked to be
examined by a doctor but his request was either refused or
ignored. R. 155-2 at 8, 18. He believes that the injury done
to his hand and/or wrist in 2009 was made worse by this
incident, but he has not submitted any medical evidence to
support that belief. See R. 155-2 at 18. He admits
that he received no medical treatment as a result of the
incident, although he apparently was issued a new medical
permit (Exhibit D to complaint), which was later honored by
prison officials when he went to court on future writs.
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56.; see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986). “Material facts” are those
under the applicable substantive law that “might affect
the outcome of the suit.” Anderson, 477 U.S.
at 248. A dispute over a “material fact” is
“genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. In deciding a motion for summary
judgment, the court will view the facts in the light most
favorable to the non-moving parties. Crull v.
Sunderman, 384 F.3d 453, 460 (7th Cir. 2004).
Eighth Amendment Claim Against Correctional Officer
alleges that Officers Smith, Nickerson, Fredericks and Myles
violated the Eighth Amendment when they refused to honor his
permit for medical restraints, intentionally applied his
handcuffs too tight, and refused to loosen the handcuffs when
he complained. The Court previously held that it was not
clear whether Verser's Eighth Amendment claim against the
correctional officer defendants was governed by the excessive
force standard set forth in Whitley v. Albers, 475
U.S. 312 (1986), or the deliberate indifference standard of
Farmer v. Brennan, 511 U.S. 825 (1994). See
R. 136 at 8 n.7 (Verser v. Smith, 2016 WL 3595727,
at *3 n.7 (N.D. Ill. July 5, 2016)). Verser's allegations
give rise to a situation where legitimate security concerns
intersect with a prisoner's alleged medical needs, thus
implicating both the excessive force standard and the
deliberate indifference standard. The Court therefore finds
it necessary to break down Verser's Eighth Amendment
handcuff claim into stages, in order to apply the standard
most appropriate for each stage.
Defendants Nickerson and Myles-Alleged
Refusal To Honor Medical Permit
Court previously held that Verser's allegation that he
had a medical permit for double handcuffing raised the
possibility that the correctional officer defendants ignored
that permit in bad faith, in which case Verser might have a
valid Eighth Amendment claim. See R. 136 at 9-14
(Verser, 2016 WL 3595727, at *4) (citing inter
alia Dominguez v. Moore, 149 Fed. App'x 281, 283-84
(5th Cir. 2005) (allegations that the black box was used
against inmate for punitive rather than security reasons
stated valid claim)). Now that discovery has taken place, it
is clear that the only correctional officer defendants
against whom this claim can be made are Myles and Nickerson
because they are the only officers who the record shows had
knowledge of Verser's medical permit. But even as to
those two defendants, Verser has failed to raise any disputed
issue of fact. It is undisputed that, when Verser presented
Myles and Nickerson with his medical permit for double front
cuffing, they did not simply ignore it. Instead, Myles
informed Nickerson, and Nickerson contacted the medical unit.
Nickerson spoke with P.A. Schwarz, who instructed him that
Verser's claimed need for medical restraints could not be
honored. Under these circumstances, it cannot be said that
Myles and Nickerson refused to honor Verser's medical
permit “maliciously and sadistically for the very
purpose of causing harm” (Whitley, 475 U.S. at
320-21 (internal quotation marks and citation omitted) or
that their conduct constituted deliberate indifference to
Verser's serious medical needs (Farmer, 511 U.S.
and Myles have provided uncontradicted testimony that the
proper procedure in circumstances when “a prisoner
presents a medical permit from another correctional
facility” is to consult with the Health Care Unit
(“HCU”) “regarding the validity of the
permit or the need for an evaluation” rather than to
rely solely on the paper permit presented by the inmate,
because “inmate's [sic] will often present doctored
permits or be issued permits for medical restraints that are
not needed and would not be approved by a Stateville
physician.” R. 155-5 at 2 (Nickerson Declaration);
see also R. 155-7 at 2 (Myles Declaration) (same).
Verser's testimony establishes that this is exactly what
Nickerson did. He called the HCU and spoke with Schwarz,
explaining to her that Verser claimed that he needed medical
restraints and had a “permit.” Verser testified
that Schwarz told Nickerson not to honor the permit.
Verser's testimony thus demonstrates that Nickerson and
Myles followed the correct procedure in contacting Schwarz
and that they did not honor Verser's medical permit
at the direction of Schwarz. As a result,
Nickerson's refusal to honor Verser's medical permit
(and farther down the chain of command, Myles's refusal
to honor that permit) cannot give rise to an Eighth Amendment
violation. See Hayes v. Snyder, 546 F.3d 516, 527
(7th Cir. 2008) (“non-medical officials are entitled to
defer to the professional judgment of the facility's
medical officials on questions of prisoners' medical
Defendants Nickerson, Myles, Smith, and
Frederickson--Failure To Loosen Handcuffs
Court also has little difficulty concluding that Verser has
not raised a disputed issue of fact regarding whether any of
the correctional officer defendants violated the Eighth
Amendment by failing to loosen the handcuffs when Verser
complained they were too tight. Both because of Schwarz's
direction to Nickerson and Myles to disregard Verser's
medical permit, and because there is no evidence that any
other correctional officer was even aware of Verser's
medical permit, Verser cannot show that the correctional
officer defendants were deliberately indifferent to his
serious medical needs. See Riccardo v. Rausch, 375
F.3d 521, 526 (7th Cir. 2004) (deliberate indifference
standard means that prison official must have subjective
awareness of the inmate's serious medical
need). Therefore, the Court will measure
Verser's claim based on failure to loosen the handcuffs
against the excessive force standard instead. Under this
standard, Verser must show that the correctional
officers' conduct did not constitute a “good-faith
effort to maintain . . . discipline [or security], ”
but rather was done “maliciously and sadistically to
cause harm.” DeWalt v. Carter, 224 F.3d 607,
619 (7th Cir. 2000) (internal quotation marks omitted)
must be reluctant to interfere with security measures
instituted by prison officials, especially when the issue is
transport outside the prison facility. Such measures do not
violate the Eighth Amendment absent a showing that they
“constitute[ ] a wanton infliction of pain that is
totally without penological justification.” Hanna
v. Lane, 610 F.Supp. 32, 35 (N.D. Ill. 1985). No such
showing has been made here. The only evidence in the record
is Verser's testimony that he complained about the
handcuffs being too tight and no one loosened them. Verser
was handcuffed according to standard procedure required for
all prisoners when being transported outside the prison
facility. There is no evidence suggesting that any of the
correctional officers' conduct in failing to loosen the
handcuffs when Verser complained about their tightness was
without penological justification. Therefore, Verser's
Eighth Amendment claim against the correctional officer
defendants for not loosening the handcuffs also fails as a
matter of law. See, e.g., Knox v. McGinnis, 998 F.2d
1405, 1412 (7th Cir. 1993) (approving prison officials'
use of restrictive mechanisms such as handcuffs,
“including the black box, on special status prisoners
when they are taken outside the prison or when they move
inside the prison to particularly vulnerable areas such as
the law library or visiting areas”); Moody v.
Proctor, 986 F.2d 239, 241 (8th Cir. 1993) (per curiam)
(“a policy requiring all prisoners to wear a black box
when outside of the prison does not violate the Eighth
Amendment because, although the black box causes discomfort,
its use is penologically justified”).
Defendants Smith and Myles--AllegedlyMalicious ...