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Lackk v. Bromaghim

United States District Court, S.D. Illinois

March 14, 2017

TIMOTHY S. LACK, Plaintiff,
v.
JOEL C. BROMAGHIM, MICHAEL BEABER, BRIAN BRENNER, STEPHEN JANUARY, and STEVEN BOSAW, Defendants.

          MEMORANDUM AND ORDER

          GILBERT, District Judge.

         Plaintiff Timothy Lack, a former inmate of Danville Correctional Center now on parole, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. In his Amended Complaint (Doc. 9), Plaintiff claims he was subjected to excessive force during his arrest. This case is now before the Court for a preliminary review of the Amended Complaint pursuant to 28 U.S.C. § 1915A, which provides:

(a) Screening - The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal - On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.

         An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

         Upon careful review of the Amended Complaint and any supporting exhibits, the Court finds it appropriate to allow this action to proceed past the threshold stage.

         The Complaint

         In his Amended Complaint (Doc. 9), Plaintiff makes the following allegations: on April 21, 2016, officers Bromaghim, Beaber, Brenner, January, and Bosaw from the Alton Police Department came to Plaintiff's home with a warrant for Plaintiff's arrest. (Doc. 9, pp. 6, 8). When they arrived, they kicked Plaintiff's door in without warning after knocking two to three times. (Doc. 1, p. 6). Plaintiff was seated with his hands up when they entered. Id. At this time, the defendants released a K-9 dog that attacked Plaintiff while he was sitting. Id. Specifically, the dog bit Plaintiff's left outer calf and left inner thigh close to his privates and attached to him. Id. Plaintiff has many scars from the attack. Id. Plaintiff was then tazed in the chest. Id. After that, several officers struck Plaintiff in the face, head, neck, and back and kicked him, stomping on his left elbow, right hand, and left ankle. Id. At one point, given the level of violence inflicted on Plaintiff, Plaintiff lost consciousness briefly. Id.

         Plaintiff had no guns or drugs to explain the level of force that was used, nor did he try to run from or fight the officers. Id. Plaintiff still suffers from left eye issues as well as bad pain in his left elbow and hand. (Doc. 9, p. 7). His right collar bone area and neck have also been in pain. Id. Plaintiff believes defendants cracked numerous bones in the alleged altercation. Id. Plaintiff has experienced numbness in his upper legs from his knees to his hips and in his lower back, along with pain. Id. Plaintiff has also had black out spells, dizziness, headaches, and “lazy eye feelings.” Id. These effects were particularly bad from the date of the incident until the end of June, but Plaintiff claims he still has issues with his legs, back, eye, elbow, hand, neck, and collar bone. Id. Plaintiff received care at Alton Memorial Hospital, but Plaintiff does not believe his injuries were fully resolved. Id.

         Discussion

         Based on the allegations of the Amended Complaint, the Court finds it convenient to designate a single count in this action. The parties and the Court will use this designation in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court.

Count 1 - On April 21, 2016, defendants violated the Fourth Amendment when they used and/or failed to intervene to prevent excessive force used against Plaintiff when a K-9 unit was released to subdue him, he was tazed, and several ...

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