United States District Court, N.D. Indiana, Fort Wayne Division
CHARLES A. BENSON, Plaintiff,
ALLEN COUNTY JAIL, et. al., Defendants.
OPINION AND ORDER
WILLIAM C. LEE, JUDGE UNITED STATES DISTRICT COURT
A. Benson, a pro se prisoner, filed an amended
complaint. ECF 19. Pursuant to 28 U.S.C. § 1915A, the
court must review the complaint and dismiss it if the action
is frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief against a
defendant who is immune from such relief. 28 U.S.C. §
1915A. Courts apply the same standard under Section 1915A as
when deciding a motion under Federal Rule of Civil Procedure
12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624
(7th Cir. 2006). To survive dismissal, a complaint must state
a claim for relief that is plausible on its face.
Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d
599, 602-03 (7th Cir. 2009). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. at 603. In deciding whether the complaint states
a claim, the court must bear in mind that “[a] document
filed pro se is to be liberally construed, and a
pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007).
complains about a number of events that took place while he
was incarcerated at the Allen County Jail as a pretrial
detainee. Because Benson was a pretrial detainee at the time
of these events, the Fourteenth rather than the Eighth
Amendment applies. Lewis v. Downey, 581 F.3d 467,
473 (7th Cir. 2009). The governing standards are functionally
equivalent, and “anything that would violate the Eighth
Amendment would also violate the Fourteenth Amendment.”
Id. “In evaluating the constitutionality of
conditions or restrictions of pretrial detention . . . the
proper inquiry is whether those conditions amount to
punishment of the detainee.” Bell v. Wolfish,
441 U.S. 520, 535 (1979). Deprivations must be
“unquestioned and serious” and deprive prisoner
of “the minimal civilized measure of life's
necessities.” Rhodes v. Chapman, 452 U.S. 337,
349 (1981). Inmates are entitled to adequate food, clothing,
shelter, medical care, bedding, hygiene materials, and
sanitation. Knight v. Wiseman, 590 F.3d 458, 463
(7th Cir. 2009); Gillis v. Litscher, 468 F.3d 488,
493 (7th Cir. 2006).
Benson complains that on May 8, 2016, five officers dressed
in S.O.R.T. gear removed him from his cell and placed him on
“suicide watch” for three days which included
being placed in segregation with restrictive conditions.
Because Benson is a pretrial detainee, he may not be punished
without due process of law. Bell, 441 U.S. at 520.
However, not every placement of a pre-trial detainee in
segregation constitutes punishment, and when done for
legitimate security reasons such placements do not violate
due process. Zarnes v. Rhodes, 64 F.3d 285, 291 n.5
(7th Cir. 1995), see also Higgs v. Carver, 286 F.3d
437, 438 (7th Cir. 2002). Here, Benson explains that he was
placed in segregation because he was being placed on suicide
watch. The officers were not punishing him. They believed he
was a threat to himself. Thus, his placement in segregation
for three days does not state a constitutional violation.
also complains of the conditions of his confinement while he
was on suicide watch for three days. He alleges the lights
were left on for 24 hours a day, he was only allowed to
shower one time and he was not permitted to visit with his
attorney. “When an inmate is placed in conditions more
restrictive than those in the general prison population,
whether through protective segregation like suicide watch or
discretionary administrative segregation, his liberty is
affected only if the more restrictive conditions are
particularly harsh compared to ordinary prison life or if he
remains subject to those conditions for a significantly long
time.” Earl v. Racine County Jail, 718 F.3d
689, 691 (7th Cir. 2013). Since Benson was on suicide watch,
it is a safer practice to leave the lights on in his cell.
Taylor v. Wausau Underwriters Ins. Co., 423 F.Supp.
2d, 882, 896-97 (E.D. Wisc. 2006). And, even if the lights
being left on for three days was unpleasant, that is too
short of a time period to implicate Benson's liberty
interest. Earl, 718 F.3d at 691 (collecting cases).
Furthermore, while not being permitted to shower everyday may
violate jail policy, it does not violate the constitution.
Being allowed to shower one time in three days does not state
a claim. Hardaway v. Meyerhoff, 734 F.3d 740 (7th
Cir. 2013). And, while he complains that his interaction with
his attorney was restricted for these three days, that does
not amount to a Sixth Amendment violation. A finding that
Benson was denied his right to access to counsel would
inherently undermine his conviction. Valdez v.
Rosenbaum, 302 F.3d 1039, 1049 (9th Cir. 2002). Thus,
this claim is not cognizable in a civil rights action until
after his conviction is first overturned in a habeas
proceeding. Heck v. Humphrey, 512 U.S. 477 (1994).
Based on the current complaint, the court cannot plausibly
infer that being placed on suicide watch under these
conditions for three days states a claim. See Mathews v.
Raemisch, 513 Fed.Appx. 605 (7th Cir. 2013).
Benson alleges that Sgt. Knox, Wacsey, Myers, Webber, Hinsey,
Lt. Purden and Charles Hart came to his cell dressed in
S.O.R.T. gear on May 13, 2016. While they were there, Lt.
Purden verbally harassed him. However, verbal harassment,
though despicable, does not trigger any constitutional
protections. See DeWalt v. Carter, 224 F.3d 607, 612
(7th Cir. 2000) (“[S]imple verbal harassment does not
constitute cruel and unusual punishment, deprive a prisoner
of a protected liberty interest or deny a prison equal
protection of the laws.”). Benson claims that, while he
was complying with their orders, Wacsey held him while Myers
pressed a riot shield against his back, causing Benson's
nose to be pressed against the barred door, breaking his
nose. ECF 19 at 3.
alleges that it was an excessive use of force for Myers and
Wacsey to have broken his nose during the cell extraction.
The “core requirement” for an excessive force
claim is that the defendant “used force not in a
good-faith effort to maintain or restore discipline, but
maliciously and sadistically to cause harm.”
Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir.
2009) (internal citation omitted). Several factors guide the
inquiry of whether an officer's use of force was
legitimate or malicious, including the need for an
application of force, the amount of force used, and the
extent of the injury suffered by the prisoner. Id.
Though the evidence may ultimately show that this was not an
excessive use of force, it is a plausible allegation that
these two officers used excessive force against him and he
will be granted leave to proceed on this claim.
Benson brings suit against the rest of the officers present
during his cell extraction. He does not allege that any of
them harmed him. Thus, Benson seemingly claims that they
failed to intervene in Myers' and Wacsey's use of
excessive force against him on May 13, 2016. State actors
“who have a realistic opportunity to step forward and
prevent a fellow [state actor] from violating a
plaintiff's right through the use of excessive force but
fail to do so” may be held liable. Miller v.
Smith, 220 F.3d 491, 495 (7th Cir.2000) (citing Yang
v. Hardin, 37 F.3d 282, 285 (7th Cir.1994). Here,
however, there is no indication that any of the officers
present during the cell extraction had any realistic
opportunity to prevent the other two officers from using
excessive force. Instead, it appears as though they were
merely present while Benson was restrained and extracted from
his cell, which seemingly happened in an instance, not giving
any officers any realistic opportunity to prevent Myers'
or Wacsey's actions.
Benson filed a motion responding to the court's prior
screening order. There is no need for Benson to file such a
motion. It will be denied on that basis.
these reasons, the court:
(1) DENIES the motion (ECF 20) responding to
the screening order;
(2) GRANTS Charles A. Benson, leave to
proceed against Allen County Jail Officers Meyers and Wacsey
in their individual capacities for compensatory and punitive
damages for using excessive force against him on May 13,
2016, in violation of the Fourteenth Amendment;
(3) DISMISSES all other
(4) DIRECTS the clerk and the United States
Marshals Service to issue and serve process on Officers
Meyers and Wacsey with a copy of this order and the complaint