United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Joseph Flagg, a prisoner without a lawyer, filed a complaint
under 42 U.S.C. § 1983 against three officers at the
Indiana State Prison. Pursuant to 28 U.S.C. § 1915A, the
court must review a complaint filed by a prisoner 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(a), (b). The court must bear in mind,
however, 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).
Flagg alleges that he had a heated disagreement with Sgt.
Terry Redden about a disciplinary action taken against him,
resulting in Redden and Flagg insulting one another.
Following that disagreement, Flagg, who suffers from asthma,
needed a breathing treatment. In response to his request,
Sgt. Redden placed Flagg in handcuffs and shackles and they
began walking to the medical department. On the way, as they
approached an elevator, Sgt. Redden kicked Flagg in the back
causing him to hit his face on the wall of the elevator, and
he then proceeded to beat Flagg and place him in a choke
hold. At one point, he told Flagg he would kill him. 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) (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. Here, Flagg states a claim that Sgt.
Redden used excessive force against him.
Anita Blair was present during at least part of this
altercation. Flagg notes that she yelled, “Stop!
Redden! Stop! Stop! Help! Help! Redden enough!” (ECF 1
at 6.) She yelled for Officer Pete to help and was able to
get his attention. She then placed a call on the radio for
emergency assistance. Flagg believes Officer Blair should
have done more to help him during the altercation. 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). Officer
Blair, however, did not simply watch and allow the attack to
happen. She intervened reasonably by yelling for Redden to
stop and yelling for help. She sought and received assistance
from Officer Pete. And, she placed a call on the radio for
emergency assistance. Therefore, this allegation does not
state a claim for failure to intervene.
Officer Pete entered the area, Sgt. Redden still had Flagg in
a choke hold. Officer Pete told Redden that the signal had
been called. At that point, Redden noticed the emergency
response team approaching and rolled Flagg onto his stomach.
Both Sgt. Redden and Officer Pete placed their knees in
Flagg's back. While Officer Redden still had Flagg in a
choke hold when Officer Pete arrived, as soon as he was told
the signal had been called and noticed the response team
approaching, the assault ended. As with Officer Blair,
Officer Pete acted reasonably in response to the altercation.
Officer Pete placed his knee on Flagg's back to subdue
him while the emergency team was arriving, but Flagg does not
allege that this was done maliciously and it does not amount
to excessive force. Therefore, Flagg has not stated a claim
against Officer Pete.
was taken for medical care immediately, but the medical team
could not assess him until he calmed down. He was stripped of
everything but his boxers and t-shirt and placed in a cell to
be assessed once he was calm. While waiting, Flagg noticed
that his vision was blurry and his ears were ringing. He
expressed to the officer on duty that he needed medical care
urgently, and the officer said he would call medical. Flagg
continued to wait and was eventually told that the shift had
just changed and they would call medical. He was then told
medical would not see him. He was initially denied access to
a supervisor, but later he was able to talk with Lieutenant
Watson. But, Watson did not take Flagg to medical because his
supervisor told him not to. In medical cases, the Eighth
Amendment test is expressed in terms of whether the defendant
was deliberately indifferent to the plaintiff's serious
medical need. Estelle v. Gamble, 429 U.S. 97 (1976).
A medical need is “serious” if it is “one
that has been diagnosed by a physician as mandating treatment
or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor's attention.”
Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005).
While it seems clear that Flagg required medical treatment,
the decision not to provide it when he initially arrived at
the medical department was made by medical staff, not any of
the defendants Flagg has sued here. Likewise, Flagg has not
alleged that any of the defendants he has sued are
responsible for any further delays in granting him medical
remained stripped in the cell overnight. It was cold, and he
was denied a blanket. The next morning, when Flagg awoke to
find he continued to have problems with his vision and
hearing, a supervisor escorted him to internal affairs. He
was interviewed, given a blanket, and provided medical care.
Shortly thereafter, he was transferred to Wabash Valley
Correctional Facility. Although “the Constitution does
not mandate comfortable prisons, ” Rhodes v.
Chapman, 452 U.S. 337, 349 (1981), inmates are entitled
to adequate food, clothing, shelter, 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). While being placed in a
cold cell without a blanket may rise to the level of an
Eighth Amendment violation, Wilson v. Seiter, 501
U.S. 294, 304 (1991), Flagg has not alleged that any of the
defendants named in his complaint are responsible for either
the temperature in the cell or the failure to issue him a
these reasons, the court:
GRANTS Juan Joseph Flagg leave to proceed on a claim against
Sgt. Redden in his individual capacity for compensatory and
punitive damages for using excessive force against him on
March 26, 2017, in violation of the Eighth Amendment;
DISMISSES Officer Anita Blair and Officer Pete;
DISMISSES any and all other claims contained in the
DIRECTS the clerk and the United States Marshals Service to
issue and serve process on Sgt. Redden at the Indiana
Department of Correction with a copy of this order and the
complaint (ECF 1), pursuant to 28 U.S.C. § 1915(d); and
ORDERS Sgt. Redden to respond, as provided for in the Federal
Rules of Civil Procedure and N.D. Ind. L.R. 10.1, only to the
claims for which the pro se plaintiff has ...