United States District Court, C.D. Illinois
KEYNTE J. DAVIS, Plaintiff,
BRIAN CORNETT, et al., Defendants.
MERIT REVIEW - SECOND AMENDED COMPLAINT
BILLY McDADE, UNITED STATES DISTRICT JUDGE.
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,
Wilson v. Ryker, 451 Fed.Appx. 588, 589 (7th Cir.
2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
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.
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
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.
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.
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.
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
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).
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).
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.
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.
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 ...