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Baird v. Duncan

United States District Court, S.D. Illinois

May 24, 2017

WILLIS BAIRD, Plaintiff,
v.
BRYAN PERDUE, JOSHUA KEENER, MARTIN BUCHNER, ERIC HARGETT, and STEPHEN DUNCAN, Defendants.

          MEMORANDUM AND ORDER

          Michael J. Reagan United States District Judge

         I. Introduction

         While incarcerated at Lawrence Correctional Center, Willis Baird (Plaintiff) filed a pro se complaint in this Court under 42 U.S.C. 1983, alleging violations of his federally-secured constitutional rights by various correctional officials. More specifically, Baird alleged the use of excessive force by Bryan Perdue and Joshua Keener on July 10, 2014 (Count 1); the use of excessive force by Perdue on September 23, 2014 and September 25, 2014 (Count 2); failure to intervene by Martin Buchner and Eric Hargett for actions occurring on September 25, 2014 (Count 3); deliberate indifference to Plaintiff's serious medical needs by Perdue, Keener, Buchner, and Hargett for the incidents on July 10, September 23, and September 25, 2014 (Count 4); failure to intervene and protect by Stephen Duncan (Count 5); and retaliation by Perdue (Count 6).

         Other claims and named Defendants were dismissed by the Court on threshold review under 28 U.S.C. 1915A (Doc. 4). Four “John Doe” Defendants were dismissed by Order dated May 9, 2017 (Doc. 63).

         The case comes before the Court on a motion for summary judgment filed by the remaining five Defendants -- Buchner, Duncan, Hargett, Keener, and Perdue (collectively, Defendants) -- along with a supporting memorandum (Docs. 49 and 50). Defendants seek summary judgment on Counts 4, 5, and 6. Plaintiff responded in opposition to the motion (Doc. 58). As explained below, the Court GRANTS IN PART AND DENIES IN PART Defendants' motion (it is denied as to Count 6).

         II. Summary of Key Allegations and Evidence

         Plaintiff's complaint is divided into six counts and presents claims of excessive force, deliberate indifference, failure to protect/intervene, and retaliation. The summary judgment motion only seeks judgment as to Plaintiff's claims that Perdue, Keener, Buchner, and Hargett were deliberately indifferent to Plaintiff's medical needs during the three incidents of excessive force (Count 4), that Duncan ignored Plaintiff's request to intervene and protect him from staff assaults (Count 5), and that Perdue retaliated against Plaintiff (Count 6).

         A. Deliberate Indifference Claims

         During the relevant time period, Plaintiff was housed at Lawrence Correctional Center. On July 10, 2014, a shakedown by tactical unit officers was conducted in Plaintiff's housing unit (Doc. 50-1, p. 7). While Perdue was not assigned to the tactical team on that date, Plaintiff offered affidavits of other inmates stating that they saw Perdue on that date and that he was present for the shakedown (Doc. 58, p. 24-25). In his deposition taken in connection with this case on June 13, 2016 (transcript at Doc. 50-1), Plaintiff testified that during the shakedown, he, along with the other inmates in his unit, were handcuffed and placed outside their cells in a line (Doc. 50-1, p. 5-6). They were ordered to keep their heads down (Id.). Plaintiff testified that Perdue slammed Plaintiff's head into the back of the inmate in front of him and told him to keep his head down (Id. at p. 6-7). Plaintiff testified that he was dizzy from the hit and that he stumbled but did not fall (Id. at p. 6, 8). Plaintiff testified that while marching out of the building, Keener also hit Plaintiff in the back of the head, slamming him into the guy in front of him (Id. at p. 6, 10).

         Plaintiff further testified that he did not remember asking anyone for medical help on July 10, 2014 and it might have been the next day that he asked for medical care (Id. at p. 9). Plaintiff testified that he doubted he said anything to Perdue out of fear but that he might have put in a sick call request on that day or the next (Id. at p. 9-10). Nor did he ask Keener for medical care (Id. at p. 12). He testified that when he returned to the cellhouse three hours later he spoke with Perdue, possibly about cleaning of the cell that was left a mess after the shakedown, but he did not ask him for medical care (Id. at p. 9). Plaintiff stated that by the time he returned to the cellhouse, his symptoms had subsided (Doc. 58 at p. 4). He specifically stated that he did not ask for medical attention from anyone on that date (Doc. 50-1, p. 25).

         Plaintiff testified that on September 23, 2014, Perdue kicked Plaintiff's cell door into his head (Doc. 50-1, p. 12). Plaintiff testified that as he was leaving the cell to use the telephone, Perdue kicked the door into Plaintiff (Id. at p. 13). The door knocked Plaintiff back, the door bounced off of Plaintiff, and then Perdue kicked the door closed (Id.). Plaintiff testified that the door hit the side of his head (Id. at p. 14). Plaintiff told Perdue that he kicked the door into his head; Perdue walked away (Id. at p. 15, 16). When Perdue returned with Plaintiff's cellmate from the telephones, Plaintiff asked to go to healthcare unit because his head was hurting (Id.). Plaintiff testified that Perdue left and may have gone to call healthcare, because Perdue came back 45 minutes later and told Plaintiff he could go to the healthcare unit (Id. at p. 16). Perdue then escorted Plaintiff to the healthcare unit, where he was seen by a nurse for a headache (Id.; Doc. 50-3). Plaintiff received pain medication for his headache (Id. at p. 16-17; Doc. 58, p. 17-19).

         On September 25, 2014, Perdue stopped Plaintiff on his way back from the healthcare unit, where he was taking physical therapy, to be frisked (Doc. 50-1, p. 18). Plaintiff testified that he asked for a lieutenant to be present during the frisking (Id. at p.18, 19). Martin Buchner showed up and Perdue began to frisk Plaintiff but when he reached his groin, Perdue “karate chop[ped]” Plaintiff in the testicles (Id.). Both Martin Buchner and Eric Hargett were present during the incident (Id.). Plaintiff testified that he immediately fell to the floor and rolled around on the ground for ten minutes asking for medical assistance (Id. at p. 20). Plaintiff testified that Buchner stated he would get him medical care after they finished their shakedown (Id.). Plaintiff got up, and Perdue continued the frisk and hit Plaintiff in the testicles again, although Plaintiff testified that he did not keel over, he just jumped (Id.). He testified that the first chop was meant to hurt him, the others did not hurt like the first (Id.). Perdue “chopped' him a third time as he was frisking Plaintiff's right leg (Id. at p. 20-21). Plaintiff described the first hit as a 20 on a 10 point scale and the other two hits as a 10 (Id. at p. 21).

         Plaintiff testified that he requested healthcare during the frisking multiple times (Doc. 50-1, p. 23). Buchner told him he could have medical care once the frisking was over (Id. at p. 20). After the incident Plaintiff was escorted back to his cell and he did not see anyone from healthcare for the injury (Id. at p. 23). Plaintiff testified that he also did not put in a request to go to the healthcare unit upon returning to his cell (Id.). Plaintiff testified that when he was let out of his cell two hours later for lunch, he went straight to the showers and declared a hunger strike, because he did not get any medical care (Id.). Plaintiff testified that the failure to originally get medical care during the incident was the sole reason for the hunger strike (Id. at p. 24). He told the officers to whom he declared his hunger strike that he was not going to eat, because he was not allowed to have medical attention during the earlier frisking episode (Id.). He did not ask those officers for medical attention (Id.). The only people he requested medical attention from were Buchner, Perdue, and Hargett, when the frisking incident first took place (Id.). Plaintiff testified that he asked the segregation officer to have someone check out his testicles, because they were still hurting (Id.). He also stated that he may have requested the same from the lieutenant that walked him over to segregation and that he believes that person was Buchner (Id.). Plaintiff never saw anyone from the healthcare unit for this injury (Id.).

         B. Failure to Protect Claim

         Plaintiff alleges that Warden Duncan failed to protect him from prison officers. Plaintiff testified that Duncan failed to protect him by keeping Plaintiff from identifying the officers who hit him in the back of the head on July 10, 2014 (Doc. 50-1, p. 27). Plaintiff testified that Duncan had the officers put on masks and ordered that inmates keep their heads down, all so that the officers could not be identified (Id.). Plaintiff testified that Duncan was responsible for Plaintiff not being able to identify the John Does in this case (Id. at p. 28).

         Plaintiff also testified that Warden Duncan ordered the shakedown on July 10, 2014 and that he knew that officers were going to use “corporal punishment” on inmates, because he ordered them to wear concealing uniforms (Id.). Plaintiff testified that Duncan approached him (Plaintiff) while he was on hunger strike and told him that the shakedown was ordered because officers were getting attacked at other prisons and that he wanted to teach the inmates a lesson (Id.).

         C. Retaliation Claim

         Relevant to Plaintiff's retaliation claim against Perdue, Plaintiff testified that the two September incidents involving Perdue were done out of retaliation for Plaintiff filing grievances against Perdue and filing a lawsuit. Plaintiff testified that he filed a lawsuit, Baird v. Godinez, Case No. 14-cv-0902, in which the complaint mentioned Perdue's attack on July 10, 2014 (Doc. 50-1, p. 29). While the July 10, 2014 incident was not a claim in the case and Perdue was not a party to the case, Plaintiff noted that Perdue's name was mentioned in the Court's threshold order issued on September 11, 2014 (Id.; Doc. 58, p. 21-22). Plaintiff testified that Perdue's friends or Perdue himself could have read the Order prior to the September incidents (Doc. 50-1, p. 30).

         Plaintiff stated that he wrote a grievance about the July incident and that he wrote a grievance on September 23, 2014 about the incident with the cell door, and then two days later Perdue conducted the frisk of Plaintiff which led to Perdue hitting Plaintiff in the testicles (Id.). Plaintiff testified that he wrote grievances against Perdue in 2013 and in January, February, and March of 2014 (Doc. 50-1, p. 31; Doc. 58, p. 28-39). Plaintiff testified that he believed the previous grievances and the lawsuit were the reasons behind Perdue kicking the door into Plaintiff's head on September 23, 2014 (Id.).

         He also stated that he believed when he informed the nurse on September 23, 2014 that Perdue had kicked the door into his head, Perdue then retaliated against Plaintiff for that complaint via the frisking incident on September 25, 2014 (Id.). Plaintiff testified that Perdue had told him months before, “If I want to get you, I can get you. I have not got you yet, ” although Plaintiff ...


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