United States District Court, C.D. Illinois
MERIT REVIEW ORDER
BILLY MCDADE UNITED STATES DISTRICT JUDGE.
proceeding pro se, and no longer in custody, files a
complaint under 42 U.S.C. § 1983, alleging the
unconstitutional use of force by two officers employed at the
Western Correctional Center (“Western”). 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
is a prolific litigator, having filed numerous cases in the
Illinois Northern and Southern District Federal Courts as
well as here in the Central District. Plaintiff discloses
that he had filed this claim previously, in Singleton v.
Zimmerman, No. 17-3247 (C.D.Ill. Oct. 31, 2017)
(“Singleton I”). Plaintiff had been
given leave to proceed in forma pauperis (“IFP”)
in that case upon his allegations of poverty. The court,
however, subsequently learned that after filing Singleton
I, Plaintiff had settled a case for a $5, 400.00 and had
not updated his IFP petition. The court revoked
Plaintiff's IFP status, ordering that he pay the $400
filing fee. When Plaintiff did not do so, the complaint was
dismissed without prejudice.
reveals that after the dismissal, he filed the claim in
Illinois state court, alleging battery and negligence.
Plaintiff now refiles the allegations of the state court and
Singleton I cases here, in Singleton v.
Zimmerman, No. 19-3036 (C.D.Ill. Feb. 11, 2019)
(“Singleton II”). Plaintiff offers no
information as to the status of the state court case. If it
is ongoing, then Singleton II, and the state court
claim are likely parallel actions, potentially subject to the
abstention doctrine identified in Colorado River Water
Conservation District v. United States, 424 U.S. 800
(1976). See Freed v. Friedman, 215 F.Supp.3d 642
(N.D. Ill. 2016). “The Colorado River
abstention doctrine provides that a federal court may stay or
dismiss a suit in federal court when a concurrent state court
case is underway, but only under exceptional circumstances
and if it would promote wise judicial administration.”
Id. at 648.
state court matter has been resolved in the interim, there
are potential concerns involving issue and claim preclusion.
The Court will order that Plaintiff file a copy of the
relevant state court complaint and any documents related to
its current status or disposition.
asserts an excessive force claim against Defendant Officer
Zimmerman. Plaintiff pleads that on April 26, 2017, he was
being transferred by bus from the Robinson Correctional
Center to Western. At some point, Plaintiff changed buses,
exiting the Robinson bus and entering the one that was to
take him to Western. It appears that Plaintiff spoke with
Defendant Zimmerman prior to entering the bus. Plaintiff
asked that Defendant allow him to sit on an aisle rather than
inside seat, as there would be more leg room and Plaintiff
had arthritis in his knees. Plaintiff claims that Defendant
Zimmerman rudely refused the request and ordered him onto the
alleges that after this exchange, Defendant Lieutenant
Haubrich entered the bus and, in response to Plaintiff's
complaint, instructed Defendant Zimmerman to allow Plaintiff
to sit on an aisle seat. When Defendant Haubrich exited the
bus, Defendant Zimmerman allegedly “kicked and
stomped” Plaintiff's foot causing him pain and
humiliation. Defendant Zimmerman then ordered Plaintiff to
the back of the bus and pushed Plaintiff as he walked.
Plaintiff turned around, telling Defendant that he was not a
child and that Defendant had no right to touch him. Plaintiff
claims that Defendant Zimmerman responded by grabbing him by
the neck and choking him. Defendant allegedly slammed
Plaintiff into the rear seat, put his knee into
Plaintiff's chest and threatened him, using a racial
the bus arrived and Plaintiff disembarked, he told Defendant
Haubrich of the occurrence. He complains that Defendant
Haubrich did not address the issue with Defendant Zimmerman
and, instead, merely ordered Plaintiff to get into line.
excessive force claims 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). This is so, as
prison officials considering the use of force must balance
the threat presented to inmates and prison officials against
the possible harm to the inmate against whom the force is to
be used. Plaintiff states a colorable claim of excessive
force claim against Defendant Zimmerman whose actions were
allegedly not taken in a good faith effort to maintain or
fails to state a cognizable claim against Defendant Haubrich,
either due to his status as Defendant Zimmerman's
supervisor, or for failing to intervene. “[I]n order to
hold an individual defendant liable under § 1983 for a
violation of an inmate's constitutional rights, the
inmate must show that the defendant was personally
responsible for that violation.” Rasho v.
Elyea, 856 F.3d 469, 478 (7th Cir. 2017). “A
defendant will be deemed to have sufficient personal
responsibility if he directed the conduct causing the
constitutional violation, or if it occurred with his
knowledge or consent.” Ames v. Randle, 933
F.Supp.2d 1028, 1037-38 (N.D.Ill.2013).
Plaintiff pled that Defendant Haubrich had exited the bus at
the time Defendant Zimmerman exerted the excessive force. As
a result, Defendant Haubrich neither personally participated
in the force nor had a reasonable opportunity to prevent it.
See Bey v. Pollard, No. 13-952, 2014 WL 5460439, at
*4 (E.D. Wis. Oct. 27, 2014). A prison official may be liable
for a failure to intervene only if he “has a realistic
opportunity to step forward and prevent a fellow officer from
violating a plaintiff's right[s]...” Defendant
Haubrich is DISMISSED.
Court notes that Plaintiff is no longer in custody and has
been ordered to submit an updated in forma pauperis
(“IFP”) petition. As previously ordered,
Plaintiff is to file the petition by June 14, 2019 or risk
revocation of the grant of IFP status in this case.
IS THEREFORE ORDERED:
1. This case shall proceed solely on the excessive force
claim against Defendant Zimmerman identified herein. All
other claims 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 ...