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Brownlee v. Zenk

United States District Court, C.D. Illinois

September 30, 2016

MARTELL BROWNLEE, Plaintiff,
v.
LIEUTENANT ZENK, et. al., Defendants.

MERIT REVIEW OPINION

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE.

         This cause is before the Court for merit review of the pro se Plaintiff's amended complaint pursuant to 28 U.S.C. § 1915A. Plaintiff's initial complaint and motions to amend were dismissed as a violation of Rule 8 of the Federal Rules of Civil Procedure. See June 15, 2016 Text order. However, Plaintiff was given additional time and instructions to file an amended complaint clarifying his intended claims and Defendants. Plaintiff has now filed his motion for leave to amend which is granted pursuant to Federal Rule of Civil Procedure 15. [10]

         In reviewing the amended 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. 2103). 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).

         The Plaintiff claims his constitutional rights were violated at Western Illinois Correctional Center by Lieutenants Zenk, Sheffler, and Fischel; Correctional Officers Buller, Collins, and Wohlfeil; and Adjustment Committee Members Richard Davis and Christopher Icenogle. Plaintiff claims on September 20, 2015, Defendants Zenk, Sheffler, Fischel, Buller, and Collins repeatedly used excessive force against Plaintiff while he was handcuffed. Plaintiff's complaint explains how each of the Defendants were involved in the continued assault. Plaintiff has adequately alleged the Defendants violated his Eighth Amendment rights by the use of excessive force.

         Plaintiff says he suffers with several cuts after the assault, but the same Defendants refused to provide him medical care. Plaintiff says he still has no feeling in two fingers. For the purposes of notice pleading, Plaintiff has also alleged Defendants Zenk, Sheffler, Fischel, Buller, and Collins violated his Eighth Amendment rights when they were deliberately indifferent to his serious medical condition.

         Plaintiff says Defendants Icenogle and Davis retaliated against him when they served on the Adjustment Committee apparently considering a disciplinary ticket stemming from the same incident. To state a retaliation claim, Plaintiff must allege that “(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was at least a motivating factor in the [d]efendants' decision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.2009) (internal quotations omitted). Plaintiff has failed to allege he engaged in a protected activity which prompted a retaliatory action. Therefore, he has failed to articulate a retaliation claim.

         Plaintiff says Defendants Icenogle and Davis also violated his due process rights when they failed to properly investigate the claims against him and instead sided with the officers. Plaintiff does not state what discipline he received as a result of the hearing.

         To satisfy due process, an inmate facing disciplinary charges must be given: (1) advance written notice of the charges against him; (2) the opportunity to appear before an impartial hearing body to contest the charges; (3) the opportunity to call witnesses and present documentary evidence in his defense; and (4) a written statement summarizing the reasons for the discipline imposed. See Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974); Cain v. Lane, 857 F.2d 1139, 1145 (7th Cir.1988). In addition, the decision of the adjustment committee must be supported by “some evidence.” Black v. Lane, 22 F.3d 1395 (7th Cir.1994). The Plaintiff's disagreement with the depth of the investigation or the ultimate outcome does not state a constitutional violation. Therefore, the Court will dismiss Defendants Icenogle and Davis.

         The Court will also dismiss Defendant Wohlfeil since he is only mentioned in the caption of the amended complaint. See Potter v Clark, 497 F.2d 1206, 1207 (7th Cir. 1974)(“Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed, even under the liberal construction to be given pro se complaints.”)

         MOTION FOR APPOINTMENT OF COUNSEL

         The Plaintiff has renewed his motion for appointment of counsel. [9] Plaintiff has no constitutional or statutory right to the appointment of counsel in this case. In considering the Plaintiff's motion, the court asks: “(1) has the indigent Plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007), citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993).

         Plaintiff's initial motion for appointment of counsel was denied since he failed to demonstrate any attempt to find counsel on his own. See June 15, 2016 Text Order. Plaintiff has now provided copies of letters he received denying his request for representation. Therefore, the Court must now consider whether Plaintiff is competent to litigate his claims.

         Plaintiff's claims before this Court are not complex. His amended complaint demonstrates he is capable of describing the incidents of excessive force, his injuries, and his attempts to obtain medical care. This testimony can be used to show evidence of deliberate indifference. See Ledford v. Sullivan, 105 F.3d 354, 358 (7th Cir. 1997)(expert testimony not necessarily required to establish deliberate indifference). Through simple discovery requests, Plaintiff can also obtain a copy of any relevant video recording, medical records, or incident reports.

         Finally, once the Defendants are in the case, the Court will enter a scheduling order which sets deadlines, provide important information for a pro se litigant, and requires the parties to provide initial discovery. Based on ...


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