United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Michael J. Reagan United States District Judge
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).
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).
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).
Summary of Key Allegations and Evidence
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).
Deliberate Indifference Claims
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).
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.
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).
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
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.).
Failure to Protect Claim
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).
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
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).
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.).
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 ...