United States District Court, C.D. Illinois
GREGORY ALLEN JOHNSON, JR. Plaintiff,
COLE ANDERSON, et al., Defendants.
MERIT REVIEW ORDER
BILLY McDADE UNITED STATES DISTRICT JUDGE.
proceeding pro se, pursues a § 1983 action
alleging violations of the Eighth and Fourteenth Amendments
at the Danville Correctional Center (“Danville”).
The case is before the Court for a merit review pursuant to
28 U.S.C. § 1915A. In reviewing the Complaint, the Court
accepts the factual allegations as true, liberally construing
them in Plaintiff's favor. Turley v. Rednour,
729 F.3d 645, 649-51 (7th Cir. 2013). 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. United States, 721
F.3d 418, 422 (7th Cir. 2013)(citation and internal quotation
marks omitted). While the pleading standard does not require
“detailed factual allegations”, it requires
“more than an unadorned,
Wilson v. Ryker, 451 Fed.Appx. 588, 589 (7th Cir.
2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
alleges that on January 9, 2018, Defendant Officers Anderson
and Fox assaulted him, without cause, violently slamming him
against a wall, strangling and punching him. Plaintiff claims
that he feared that his shoulder was dislocated and submitted
to an x-ray, but does not disclose the x-ray results.
Plaintiff makes the vague claim that Defendant Officer Ms.
Martin, refused to “stop what was going
on…”, but does not claim that she was present at
the scene or had an opportunity to intervene. Plaintiff
asserts that he was placed in a segregation cell at a later
date, and that for three days Defendant Het refused to give
him bed or blanket, and he was forced to sleep on the floor.
Plaintiff has alleged the unconstitutional use of force by
Defendant Officers Anderson and Fox. When reviewing claims of
excessive force, the relevant inquiry is “whether force
was applied in a good faith effort to maintain or restore
discipline or maliciously and sadistically for the very
purpose of causing harm.” Whitley v. Albers,
475 U.S. 312, 320-21 (1986). Here, Plaintiff states a
colorable claim that Defendants Anderson and Fox exerted
unjustifiable force against him.
allegations as to Defendant Martin, however, are too vague.
While a prison official may be liable for failing to
intervene when excessive force is exerted by another, this is
so only if the official had a realistic opportunity to do so.
“The Seventh Circuit has recognized that where an
officer has a realistic opportunity to step forward and
prevent a fellow officer from violating a plaintiff's
right but fails to do so, he may be held liable.”
Bey v. Pollard, 13-952, 2014 WL 5460439, at *4 (E.D.
Wis. Oct. 27, 2014) (internal citations omitted). Here
Plaintiff does not plead that Defendant Martin witnessed the
occurrence or had a realistic opportunity to intervene. This
claim is DISMISSED, with leave to replead.
claim that Defendant Het caused him to sleep three days on
the floor without a bed or blanket fails to state a claim of
inhumane conditions of confinement claim. To plead a
constitution violation, the conditions of confinement must be
“unquestioned and serious” and contrary to
“the minimal civilized measure of life's
necessities.” Rhodes v. Chapman, 452 U.S. 337,
347 (1981). “[E]xtreme deprivations are required to
make out a conditions-of-confinement claim.” Hudson
v. McMillian, 503 U.S. 1, 9 (1992). Conditions which are
restrictive and even harsh, are part of the penalty that
offenders pay. Furthermore, to be actionable, a Defendant
must know of “a substantial risk of serious harm and
disregard[s] that risk by failing to take reasonable measures
to abate it.” Farmer v. Brennan, 511 U.S. 825,
847 (1994). See Dixon v. Godinez, 114 F.3d 640, 644
(7th Cir. 1997) (court to examine not just the severity, but
the duration of the complained-of conditions). Here, the
Court does not find that three days on the floor sufficient
to violate the Constitution. See Harris v. Fleming,
839 F.2d 1232, 1235 (7th Cir. 1988)(ten days in a segregation
unit without toilet paper, toothbrush or toothpaste in a
“filthy, roach-infested cell” did not constitute
cruel and unusual punishment).
makes the additional claim that immediately after the
altercation, Defendant Maskel placed him in segregation
without a disciplinary hearing, or providing notice of the
charges against him. It appears likely, however, that
Plaintiff was placed in administrative segregation, pending
the investigation of the charges. It has been determined that
“the mere fact of placement in administrative
segregation is not in itself enough to implicate a liberty
interest; the liberty interest only exists if that placement
is an ‘atypical and significant hardship' relative
to others similarly sentenced.” Lieberman v.
Budz, No. 03-2009, 2009 WL 1437609, at *10 (N.D. Ill.
May 20, 2009) (internal citations omitted). Here, the Court
has already determined that the conditions were not atypical
and so did not trigger a liberty interest. Plaintiff's
due process claim DISMISSED though he will be given an
opportunity to replead in the event that he is claiming
placement in disciplinary segregation without due process. If
Plaintiff asserts this claim he is to indicate whether he was
ever formally charged, whether the charges went to hearing,
and the finding at the hearing.
case shall proceed on the excessive force claim against
Defendants Anderson and Fox. The due process and failure to
intervene claims are DISMISSED.
IS THEREFORE ORDERED:
1. This case shall proceed solely on the excessive force
claim against Defendants Anderson and Fox. Any claims not
identified will not be included in the case, except in the
Court's discretion upon motion by a party for good cause
shown, or by leave of court pursuant to Federal Rule of Civil
Procedure 15. Defendants Martin, Maskel and Het are
DISMISSED, though Plaintiff will be given an opportunity to
replead the claims against Defendants Martin and Maskel. If
Plaintiff does so, he is to identify the pleading as an
amended complaint. It must stand complete on its own without
reference to a prior pleading, asserting all claims against
2. The Clerk is directed to send Defendants, pursuant to this
District's internal procedures: 1) a Notice of Lawsuit
and Request for Waiver of Service; 2) a Waiver of Service; 3)
a copy of the Complaint; and 4) a copy of this Order.
3. If a Defendant fails to sign and return a Waiver of
Service to the Clerk within 30 days after the Waiver is sent,
the Court will take appropriate steps to effect formal
service on that Defendant and will require that Defendant pay
the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2). If a Defendant no longer works at
the address provided by Plaintiff, the entity for which
Defendant worked at the time identified in the Complaint
shall provide to the Clerk Defendant's current work
address, or, if not known, Defendant's forwarding
address. This information will be used only for purposes of
effecting service. Documentation of forwarding addresses will
be maintained only by the Clerk and shall not be maintained
in the public docket nor disclosed by the Clerk.
4. Defendants shall file an answer within the prescribed by
Local Rule. A Motion to Dismiss is not an answer. The answer
it to include all defenses appropriate under the Federal
Rules. The answer and subsequent pleadings are to address the
issues and claims identified in this Order.
5. Plaintiff shall serve upon Defendants, if served, but not
represented by counsel, a copy of every filing submitted by
Plaintiff for consideration by the Court, and shall also file
a certificate of service stating the date on which the copy
was mailed. Any paper received by a District Judge or
Magistrate Judge that has not been filed with the Clerk or