United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
JOSEPH
S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE.
James
Larkin, a prisoner without a lawyer, filed a complaint
listing five claims. ECF 1 at ¶¶ 46-50. 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) (quotation marks and citations omitted). However,
pursuant to 28 U.S.C. § 1915A, the court must review the
merits of a prisoner 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.
First,
Larkin alleges Lt. Ekins “repeatedly sprayed [him] with
pepper spray (O.C.) while locked in my cell . . . unarmed and
. . . subdued . . ..” ECF 1 at 6-7. 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). “[T]he question whether the measure
taken inflicted unnecessary and wanton pain and suffering
ultimately turns on whether force was applied in a good faith
effort to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.”
Whitley v. Albers , 475 U.S. 312, 320-21 (1986)
(quotation marks and citation omitted). Here, Larkin has
plausibly alleged Lt. Ekins inflicted cruel and unusual
punishment on him in violation of the Eighth Amendment by
acting maliciously and sadistically, in bad faith for no
legitimate purpose.
Second,
Larkin alleges Sgt. Bradford, Sgt. Talbott, Officer Krause,
Officer Bach, Officer Andrew, Officer Ryan, [1] Lt. Armstrong,
and Lt. Ekins beat him “in the head, face, and body
[while he was] unarmed and . . . subdued . . ..” ECF 1
at 6-7. Larkin also alleges a failure to intervene to stop
the others from attacking him. “Police officers who
have a realistic opportunity to step forward and prevent a
fellow officer 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, Larkin has plausibly alleged Sgt.
Bradford, Sgt. Talbott, Officer Krause, Officer Bach, Officer
Andrew, Officer Ryan, Lt. Armstrong, and Lt. Ekins inflicted
cruel and unusual punishment on him in violation of the
Eighth Amendment by acting maliciously and sadistically, in
bad faith for no legitimate purpose. He has also plausibly
alleged they failed to intervene.
Third,
Larkin alleges those same actions are also a tort under
Indiana law. However, before a tort claim can proceed in
court against an employee of the State of Indiana, the
plaintiff must file a notice of tort claim as required by the
Indiana Tort Claims Act. See Indiana Code §
34-13-3-6 and Poole v. Clase, 476 N.E.2d 828 (Ind.
1985). Here, Larkin does not mention filing a tort claims
notice and it would not be plausible to infer that he has.
Therefore he may not proceed on a State law claim.
Fourth,
Larkin alleges Warden Sevier and Major Cornett did not
discipline employees who used excessive force on prior
occasions. The essence of this claim is that they failed to
properly train the defendants to not use excessive force.
However, “in the Eighth Amendment context, such claims
may only be maintained against a municipality.”
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.
2001) citing Farmer v. Brennan, 511 U.S. 825, 841
(1994). Neither Warden Sevier nor Major Cornett are a
municipality. Therefore these allegations do not state a
claim.
Fifth,
Larkin alleges Warden Sevier, Major Cornett, Lt. Halloran,
and Mental Health Officer Boren placed him “on strip
cell to punish him for covering his cell door window and for
engaging in a hunger strike . . ..” ECF 1 at 10. He
alleges this was done without a hearing and was
disproportionate to what he did. ECF 1 at 8. However, due
process is only required when punishment extends the duration
of confinement or imposes “an atypical and significant
hardship on him in relation to the ordinary incidents of
prison life.” Sandin v. Conner, 515 U.S. 472,
484 (1995). “After Sandin, it is clear that
the touchstone of the inquiry into the existence of a
protected, state-created liberty interest in avoiding
restrictive conditions of confinement is not the language of
regulations regarding those conditions but the nature of
those conditions themselves in relation to the ordinary
incidents of prison life.” Wilkinson v.
Austin, 545 U.S. 209, 223 (2005) (quotation marks and
citation omitted). “In Marion, th[e] court
noted that ‘six months of segregation is not such an
extreme term and, standing alone, would not trigger due
process rights.” Hardaway v. Meyerhoff, 734
F.3d 740, 744 (7th Cir. 2013) (quotation marks and citation
omitted). Here, the duration and severity of the conditions
desribed by Larkin do not constitute an atypical and
significant hardship, therefore these allegations do not
state a claim.
For
these reasons, the court:
(1) DIRECTS the clerk to add Ryan as a defendant;
(2) GRANTS James Larkin leave to proceed against Lt. Ekins in
his individual capacity for compensatory and punitive damages
for using excessive force against him on April 10, 2018, by
repeatedly pepper spraying him while he was locked in his
cell in violation of the Eighth Amendment;
(3) GRANTS James Larkin leave to proceed against Sgt.
Bradford, Sgt. Talbott, Officer Krause, Officer Bach, Officer
Andrew, Officer Ryan, Lt. Armstrong, and Lt. Ekins in their
individual capacities for compensatory and punitive damages
for using excessive force against him on April 10, 2018, by
beating him in the head, face, and body while he was unarmed
and subdued in violation of the Eighth Amendment;
(4) GRANTS James Larkin leave to proceed against Sgt.
Bradford, Sgt. Talbott, Officer Krause, Officer Bach, Officer
Andrew, Officer Ryan, Lt. Armstrong, and Lt. Ekins in their
individual capacities for compensatory and punitive damages
for failing to intervene to stop other officers from
assaulting him on April 10, 2018, in violation of the Eighth
Amendment;
(5) DISMISSES all other claims;
(6) DISMISSES Mark Sevier, Major Cornett, Halloran, and
...