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Newby v. Howell

United States District Court, S.D. Illinois

December 10, 2019

THOMAS NEWBY, Plaintiff,
v.
JERRY HOWELL, DANIEL SULLIVAN, and MICHAEL PROCTOR, Defendants.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE.

         Plaintiff Thomas Newby, an inmate of the Illinois Department of Corrections (“IDOC”) who is currently incarcerated at Big Muddy Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. In the Complaint, Plaintiff alleges Howell used excessive force against him in violation of the Eighth Amendment. Plaintiff seeks monetary damages.

         This case is now before the Court for preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to screen prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). Any portion of a complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief must be dismissed. 28 U.S.C. § 1915A(b).

         The Complaint

         Plaintiff makes the following allegations: On March 3, 2019, Plaintiff got into a verbal disagreement with food supervisor Howell, which resulted in Howell placing Plaintiff in a head lock, grabbing him by the shirt, and pulling him to the ground. Howell fell, causing Plaintiff to hit and injure his head (Doc. 1, p. 6). As a result of the encounter, Plaintiff lost his job. He asked both food supervisor Proctor and warden Sullivan for his job back, but they refused. (Id. at p. 7).

         Discussion

         Based on the allegations in the Complaint, the Court finds it convenient to designate a single count in this pro se action:

Count 1: Howell subjected Plaintiff to excessive force in violation of the Eighth Amendment.

         The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. Any other claim that is mentioned in the Complaint but not addressed in this Order should be considered dismissed without prejudice as inadequately pled under the Twombly pleading standard.[1]

         Preliminary Dismissals

         Plaintiff alleges that he asked Proctor and Sullivan for his job back after he lost his job because of his encounter with Howell, but that they both refused to give him his job back. He fails, however, to allege that their refusal resulted in a deprivation of his constitutional rights. Because Plaintiff fails to allege that Proctor and Sullivan violated his constitutional rights, the Court DISMISSES all potential claims against Proctor and Sullivan without prejudice.

         Count 1

         At this stage, the allegations of the Complaint state a viable claim against Jerry Howell for excessive force. DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000).

         Pending ...


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