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Davis v. Cornett

United States District Court, C.D. Illinois

November 22, 2019

KEYNTE J. DAVIS, Plaintiff,
v.
BRIAN CORNETT, et al., Defendants.

          MERIT REVIEW - SECOND AMENDED COMPLAINT

          JOE BILLY McDADE, UNITED STATES DISTRICT JUDGE.

         Plaintiff, proceeding pro se, files a second amended complaint alleging excessive force and failure to intervene at the time of his arrest, as well as deliberate indifference to his serious medical needs at the Vermilion County Public Safety Building (“Jail”). 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, the-defendant-unlawfully-harmed-me accusation.” Wilson v. Ryker, 451 Fed.Appx. 588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Plaintiff alleges that on May 29, 2018, for reasons not specified, the Danville Police attempted to stop him. Plaintiff did not cooperate and, instead, ran. A police dog was sent after him, taking Plaintiff to the ground, latching onto Plaintiff's leg, then his hand. Defendant Officer Cornett walked up and told his “partner” (presumably the canine) to stop biting Plaintiff's hand. The dog let go, but then bit down on Plaintiff's left arm. Plaintiff alleges that Defendant shook the dog's head so as to anger it and cause it to further injure him. Plaintiff alleges that although he was subdued, Defendant Cornett allowed the dog to bite him for at least 10 minutes before calling it off. Plaintiff asserts that Defendant Crowley was also present and did nothing to stop the attack even though the dog had “ripped open” Plaintiff's arm.

         Plaintiff was thereafter taken by ambulance to the Carle Hospital, complaining of numbness in his hand. He had x-rays taken and his hand was sutured. Plaintiff alleges that on this, or perhaps a subsequent occasion, at physician at Carle recommended that he undergo physical therapy, presumably to his hand.

         On the date in question, Plaintiff was transported to the Jail and seen the following day by Defendant Shelley, presumably a nurse. Defendant Shelley told him that he would be taken to Aunt Martha's Clinic in 10 days to have the stitches removed. Plaintiff complains, however, that it was 20 days before this was done. He believes Defendant Shelly was responsible for the delay.

         Plaintiff claims that Defendant Shelley ordered antibiotics and asserts, without elaboration, that they did not work. Defendant thereafter placed Plaintiff on a different medication which made him sick to his stomach. Plaintiff made multiple complaints to Defendant Shelley before she sent him to be seen by a physician at Aunt Martha's Clinic. When seen, the unidentified physician told Plaintiff that he had suffered radial nerve damage and would need to be seen by a specialist. Plaintiff complains that it was two months before he was seen by the specialist.

         Plaintiff alleges that Defendant Cornett violated his Fourth and Fourteenth Amendment rights by using excessive force in failing to call off the police dog. He alleges that Defendant Crawley violated his Fourth and Fourteenth Amendment rights when he failed to intervene to stop the attack. He asserts that Defendant Shelley violated his Fourth and Fourteenth Amendment rights in not timely sending him to have the stitches removed, failing to order additional x-rays, failing to order the recommended physical therapy, and failing to have him earlier seen by a specialist. Plaintiff's claims against Defendant Shelly, however, do not allege an unconstitutional search or seizure, so are reviewed as arising only under the Fourteenth Amendment.

         Plaintiff also asserts, in conclusory fashion, that the Jail had a policy of restricting and denying follow-up care and that Defendant Shelley acted pursuant to that policy. He requests injunctive relief, that jail staff be ordered to undertake x-rays and provide him physical therapy. He also requests declaratory relief, as well as compensatory and punitive damages.

         ANALYSIS

         Plaintiff's Fourth Amendment claims are reviewed under a reasonableness standard. “In general, the use of excessive force to effect an arrest is evaluated under the Fourth Amendment reasonableness standard, assessing the objective facts which confronted an officer at the time and taking into account, 1) the severity of the crime at issue, 2) the immediate threat to the safety of the officers or others posed by the suspect, and 3) the resistance by the suspect, including active resistance or attempting to resist arrest by flight.” Tilson v. City of Elkhart, Ind., 317 F.Supp.2d 861, 866-67 (N.D. Ind. 2003), aff'd sub nom. Tilson v. City of Elkhart, Ind., 96 Fed.Appx. 413 (7th Cir. 2004). It is recognized that determining whether the force used was reasonable requires a careful balancing of ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake.” Id. quoting Graham v. Connor, 490 U.S. 386, 396 (1989).

         Plaintiff's Fourteenth Amendment claims are reviewed under an objective reasonableness standard. Darnell v. Pineiro, 849 F.3d 17, (2nd Cir. 2017). As a result, a Plaintiff need establish only that the defendant's conduct was objectively unreasonable, not that defendant was subjectively aware that it was unreasonable. Miranda v. Lake, 900 F.3d 335 (7th Cir. 2018) at *9, citing Kingsley v. Hendrickson, 135 S.Ct. 2466, 2466. (Emphasis in original).

         As to Defendant Cornett, Defendant is potentially liable for excessive force if his actions were objectively unreasonable in the context of the underlying facts and circumstances. See Tilson, at 866-67. Here, Plaintiff alleges that, although he was subdued, Defendant Cornett allowed the police dog to bite him for another 10 minutes. He also asserts that Defendant shook the dog's head so as to anger it and encourage it to further harm Plaintiff. This is sufficient to plead that Defendant's actions were objectively unreasonable and this claim will proceed.

         Plaintiff claims that Defendant Crawley was present, had an opportunity, and failed to intervene to stop the dog's unwarranted, continued attack. A defendant is liable for the failure to intervene if he knew of the unconstitutional conduct and, despite a realistic opportunity, failed to take reasonable steps to prevent the harm, causing injury to plaintiff. See Watkins v. Ghosh, No. 11-1880, 2014 WL 840949, at *3 (N.D. Ill. Mar. 4, 2014) (internal citation omitted). Here, Plaintiff has pled enough against Defendant Crawley and this claim, too, shall proceed.

         Plaintiff also asserts several instances of deliberate indifference on the part of Defendant Shelly. Plaintiff alleges that she did not ensure that the stitches were timely removed as he was referred to Aunt Martha's [Clinic] 20 days later when the stitches should have been removed within 10 days. While it is not clear that Plaintiff was injured due to the alleged delay, there remains a question as to whether Defendant took reasonable measures to ensure that the ...


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