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Verser v. Smith

United States District Court, N.D. Illinois, Eastern Division

February 9, 2016

Glenn Verser, Plaintiff,
Kanji Smith, Jerome Nickerson, Theodore Fredericks, Imia Myles, a/k/a Imia Myles-Johnson, and Mary Diane Schwarz, P.A., Defendants.


          Thomas M. Durkin, United States District Judge

         Plaintiff 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[1]), 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.

         I. Factual Background

         The 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).

         On May 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 that day.

         According 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.[2] Verser informed Officer Myles that he had a medical permit allowing the use of double cuffs.[3] 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.

         Verser 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.

         Officer 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. Id.

         II. Analysis

         Summary 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).

         A. Eighth Amendment Claim Against Correctional Officer Defendants

         Verser 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.

         1. Defendants Nickerson and Myles-Alleged Refusal To Honor Medical Permit

         The 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. at 828).

         Nickerson 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 care”).

         2. Defendants Nickerson, Myles, Smith, and Frederickson--Failure To Loosen Handcuffs

         The 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).[4] 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) (quoting Whitley).

         Courts 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”).

         3. Defendants Smith and Myles--AllegedlyMalicious ...

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