United States District Court, C.D. Illinois
MERIT REVIEW AND CASE MANAGEMENT ORDER.
E. SHADID UNITED STATES DISTRICT JUDGE.
Plaintiff, a pro se prisoner, has filed a complaint, ; two
motions for appointment of counsel, [5, 6]; and a motion for
a temporary restraining order. . The Court is required by
28 U.S.C. §1915A to “screen” the
Plaintiff's complaint, and through such process to
identify and dismiss any legally insufficient claim, or the
entire action if warranted. A claim is legally insufficient
if it “(1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or (2) seeks monetary
relief from a defendant who is immune from such
relief.” 28 U.S.C. §1915A.
has named five Defendants including the Illinois Department
of Corrections, John Doe #1, John Doe #2, Sergeant Baylor and
Lieutenant Bennett. Although Plaintiff has included a lengthy
grievance in the middle of his filing, (Comp., p. 5-15), the
Court will only consider the claims clearly stated in the
body of Plaintiff's complaint. (Comp., p. 16-18).
Plaintiff says on August 24, 2016, John Doe #1 and John Doe
#2 handcuffed him from behind and took him to the dining room
during an apparent search of Pontiac Correctional Center.
Plaintiff informed the officers he was a 66-year-old inmate
with degenerative joint disease, and asked the officers to
handcuff him in the front. The officer's refused and
Plaintiff was forced to sit in excruciating pain for two
hours. When Plaintiff began to moan, the officers told him to
stop. Plaintiff explained he was in pain and again asked to
be cuffed in the front. When Plaintiff continued to moan, the
officers forced him face first into a wall and ordered him to
his knees. Plaintiff says the officers continued to use their
bodies to push him into the wall until he could no longer
breathe and he passed out.
next thing Plaintiff remembers is yelling for help, but he
was moved to a seat and forced to continue sitting,
handcuffed from behind, and in extreme pain. Plaintiff says
Defendants Sergeant Baylor and Lieutenant Bennett saw the
entire incident, but did not intervene.
has adequately alleged Defendants John Doe #1 and John Doe #2
used excessive force against him on August 24, 2016, and
Defendants Baylor and Bennett failed to intervene to stop the
use of excessive force. However, Plaintiff has not
articulated an official capacity claim or a claim against the
Illinois Department of Corrections.
Court notes it is unclear if Plaintiff properly exhausted his
administrative remedies for his allegations. The
Administrative Review Board returned his grievance claiming
it was untimely, but the Plaintiff claims he filed an
emergency grievance and Defendants refused to provide a
response. This is not an issue that can be addressed based on
the face of Plaintiff's complaint. See Walker v.
Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002)
(dismissal is appropriate “when the existence of a
valid affirmative defense is so plain from the face of the
complaint that the suit can be regarded as frivolous”).
has also filed a motion for an emergency temporary
restraining order and a preliminary injunction. . A
temporary restraining order (TRO) can be issued without
notice to the party to be enjoined, but it may last no more
than fourteen days. Fed.R.Civ.P. 65(b)(2). A court may only
grant the motion if “specific facts in an affidavit or
a verified complaint clearly show that immediate or
irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition.”
Fed.R.Civ.P. 65(b)(1)(A). This relief is warranted “to
prevent a substantial risk of injury from ripening into
actual harm.” Farmer v. Brennan, 511 U.S. 825,
845 (1994). A TRO is an “emergency remedy”
designed to “maintain the status quo until a hearing
can be held on an application for a preliminary
injunction.” Crue v. Aiken, 137 F.Supp.2d
1076, 1082 (C.D.Ill. April 6, 2001).
other hand, a preliminary injunction can be issued only after
the adverse party is given notice and an opportunity to
oppose the motion. See Fed. R. Civ. P. 65(a)(1).
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public
interest.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008) (citations omitted). See
also Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir.
2013); Woods v. Buss, 496 F.3d 620, 622 (7th Cir.
2007); Cooper v. Salazar, 196 F.3d 809, 813 (7th
Cir. 1999). A preliminary injunction is “an
extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing, carries the
burden of persuasion.” Mazurek v. Armstrong,
520 U.S. 968, 972 (1997).
addition, in the context of prisoner litigation, the Prisoner
Litigation Reform Act (PLRA) places further restrictions on
courts' remedial power. See Westefer v. Neal,
682 F.3d 679, 683 (7th Cir. 2012); Johnson v.
Lashbrook, 2017 WL 958509, at *1-2 (S.D.Ill. March 13,
2017). Pursuant to the PLRA, preliminary injunction relief
“must be narrowly drawn, extend no further than
necessary to correct the harm the court finds requires
preliminary relief, and be the least intrusive means
necessary to correct that harm.” 18 U.S.C. §
3626(a)(2); see also Westefer, 682 F.3d at 683 (the
PLRA “enforces a point repeatedly made by the Supreme
Court in cases challenging prison conditions: prison
officials have broad administrative and discretionary
authority over the institutions they manage”) (internal
quotation marks and citation omitted).
repeats the claims in his complaint. However, Plaintiff also
says he has asked Medical Director Dr. Tilden to approve a
front cuff permit on multiple occasions, but each request was
denied. In addition, Plaintiff says the Illinois Department
of Corrections has a practice of condoning the use of
excessive force and torture. Plaintiff asks for an immediate
order directing officers to use front cuffs when handcuffs
are necessary for Plaintiff.
on Plaintiff's motion, it appears an inmate needs medical
approval for a front cuff permit. Plaintiff admits he did not
have this approval during the incident alleged in his
complaint. If true, the John Doe Defendants would not be
required to put Plaintiff in front cuffs when they first took
him from his cell. However, Plaintiff claims after two hours,
he told the officers he was in extreme pain. The Defendants
responded by violating his Eighth Amendment rights when they
refused to remove the cuffs and applied additional force
causing him to pass out.
medical approval is needed for a front cuff permit, then none
of the named Defendants could provide the action requested by
Plaintiff in his motion for injunctive relief. In addition,
Plaintiff has presented no evidence that he suffers from
degenerative joint disease, nor that it is serious enough to
warrant a front cuff permit. Finally, Plaintiff's
complaint does not allege a pattern and practice of using
excessive force. Instead, Plaintiff's complaint alleges
one incident of excessive force which occurred nearly one
year ago. Plaintiff has not met his burden for either a
temporary restraining order or a preliminary injunction and
his motion is denied.
Plaintiff has filed two motions for appointment of counsel.
[5, 6]. Plaintiff has no constitutional right to the
appointment of counsel. In addition, the Court cannot require
an attorney to accept pro bono appointment in a civil case.
The most the Court can do is ask for volunteer counsel.
See Jackson v. County of McLean, 953 F.2d 1070, 1071
(7th Cir. 1992). In considering Plaintiff's
motion, the Court must ask two questions: “(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 (7thCir. 2007),
citing Farmer v. Haas, 990 F.2d 319, 322
(7th Cir. 1993).
claims he has written to four different law firms, but has
not received a response. [5, 6]. Nonetheless, Plaintiff's
claims of excessive force and failure to protect from the use
of excessive force are not complex. Plaintiff's complaint
demonstrates he is capable of explaining what happened
including the Defendants' actions, and the impact on
Plaintiff. In addition, once the Defendants are served, the
Court will enter a Scheduling Order with information to
assist a pro se litigant and requiring the parties to provide