United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. MILLER, JR. JUDGE
Leroy Futch, a prisoner without a lawyer, filed a complaint
against Sergeant D. Waller, Sergeant Burton, and Officer
Prait. “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).
Nevertheless, under 28 U.S.C. § 1915A, this court must
review the complaint and dismiss it if the action is
frivolous or malicious, fails to state a claim, or seeks
monetary relief against a defendant who is immune from such
relief. “In order to state a claim under [42 U.S.C.]
§ 1983 a plaintiff must allege: (1) that defendants
deprived him of a federal constitutional right; and (2) that
the defendants acted under color of state law.”
Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).
complaint, Mr. Futch alleges that, on November 11, 2017,
Sergeant Waller ordered some of the inmates standing in the
dining hall line to move to the back of the line. When Mr.
Futch didn't comply, Sergeant Waller deployed his canine
unit onto a table near Mr. Futch. After seeing Mr.
Futch's reaction to the canine unit, Sergeant Waller and
Sergeant Burton applied pepper spray to Mr. Futch's face.
Mr. Futch was issued a disciplinary ticket for engaging in
threatening behavior. Officer Prait presided over Mr.
Futch's disciplinary hearing. During the hearing, Officer
Prait treated Mr. Futch unfairly and found him guilty of the
offense, which resulted in the loss of good time credit.
Futch alleges an Eighth Amendment claim of excessive force
against Sergeant Waller and Sergeant Burton. 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. According to Mr.
Futch, Sergeant Waller and Sergeant Burton had no legitimate
reason to use force against him. The complaint plausibly
states an Eighth Amendment claim of excessive force against
Sergeants Waller and Burton.
Futch also alleges Sergeant Waller intentionally caused the
events in the dining hall as a retaliatory measure. “To
prevail on his First Amendment retaliation claim, [a
plaintiff] must show that (1) he engaged in activity
protected by the First Amendment; (2) he suffered a
deprivation that would likely deter First Amendment activity
in the future; and (3) the First Amendment activity was at
least a motivating factor in the Defendants' decision to
take the retaliatory action.” Gomez v. Randle,
680 F.3d 859, 866 (7th Cir. 2012). Mr. Futch doesn't
identify any First Amendment activity that could have
motivated Sergeant Waller to retaliate against him. As a
result, he cannot proceed on a claim of First Amendment
Futch also asserts that Officer Prait deprived him of
procedural due process during a disciplinary hearing.
However, “a state prisoner's claim for damages is
not cognizable under 42 U.S.C. § 1983 if a judgment in
favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence, unless the prisoner can
demonstrate that the conviction or sentence has previously
been invalidated.” Edwards v. Balisok, 520
U.S. 641, 643 (1997). This rule also extends to claims
challenging the loss of good time credit in prison
disciplinary actions. Id. at 648. Mr. Futch admits
that he was found guilty of engaging in threatening behavior
and doesn't allege that the finding of guilt has since
been invalidated. ECF 1-1 at 9; see also Futch v.
Warden, 3:17-cv-461 (N.D. Ind. filed June 15, 2017).
Because finding that he was deprived of procedural due
process as alleged would inherently undermine the validity of
his disciplinary hearing, he may not proceed on this claim
against Officer Prait.
these reasons, the court:
(1) GRANTS Kenny Leroy Futch leave to proceed on a claim
against Sergeant D. Waller and Sergeant Burton for money
damages for use of excessive force on November 11, 2017, in
violation of the Eighth Amendment;
(2) DISMISSES Officer Prait;
(3) DISMISSES all other claims;
(4) DIRECTS the clerk and the United States Marshals Service
to issue and serve process on Sergeant D. Waller and Sergeant
Burton at the Indiana Department of Correction with a copy of
this order and the complaint (ECF 1) as required by 28 U.S.C.
§ 1915(d); and
(5) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that
Sergeant D. Waller and Sergeant Burton respond, as provided
for in the Federal Rules of Civil Procedure and N.D. Ind.
L.R. 10.1, only to the claim for which Kenny Leroy Futch ...