United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON JUDGE UNITED STATES DISTRICT COURT
Graham, a prisoner without a lawyer filed a complaint (ECF 1)
against multiple defendants alleging that, while he was
housed at the Indiana State Prison, the defendants used
excessive force against him, were deliberately indifferent to
his medical needs, and retaliated against him for complaining
about their indifference. “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). Nevertheless, pursuant to 28 U.S.C.
§ 1915A, I 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.
December 29, 2017, at approximately 4:30 a.m., Graham, while
wearing handcuffs, slipped and fell on an icy sidewalk while
being escorted outside. He immediately knew he had suffered a
serious injury, and he told one of the officers escorting
him, Sgt. Itodo, that he could not move. Sgt. Itodo did not
call for immediate medical help. Instead, Sgt. Itodo, Sgt. J.
Piggot, Ofc. Maldonado, and Officer B. Rei snatched Graham up
off the ground and forced him into a holding cell. Around
5:30 a.m., Sgt. Itodo told Graham that, if he did not stop
asking for a nurse and lieutenant and get to his cell he
would be written up for interfering with the count. When
Graham insisted that he could not put weight on his right
side, Sgt. Itodo indicated that he would help him get to his
cell. Graham then hopped up five flights of stairs with Sgt.
Itodo's help. While Sgt. Itodo did not call for medical
care or inform the next shift of the incident, he did provide
Graham with ice for his injuries. Later that morning, around
9:00 a.m., Graham alerted another sergeant of his injuries,
and he was sent to see a nurse. Graham's vitals were
checked, his injuries were documented, and he was provided
with ice and Tylenol.
alleges the officers used excessive force when they snatched
him from the ground following his fall and forced him into a
holding cell. 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). 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. Giving Graham the inferences to which
he is entitled at this stage of the case, I find that Graham
has stated an excessive force claim against Sgt. Itodo, Sgt.
J. Piggot, Ofc. Maldonado, and Officer B. Rei for snatching
him from the ground when injured and forcing him into a
holding cell on December 29, 2017.
also alleges that the failure to immediately call for medical
assistance constituted cruel and unusual punishment. Under
the Eighth Amendment, inmates are entitled to adequate
medical care. Estelle v. Gamble, 429 U.S. 97, 104
(1976). To establish liability, a prisoner must satisfy both
an objective and subjective component by showing: (1) his
medical need was objectively serious; and (2) the defendant
acted with deliberate indifference to that medical need.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). A
medical need is “serious” if it is one that a
physician has diagnosed 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). On the
subjective prong, the plaintiff must establish that the
defendant “acted in an intentional or criminally
reckless manner, i.e., the defendant must have known that the
plaintiff was at serious risk of being harmed and decided not
to do anything to prevent that harm from occurring even
though he could have easily done so.” Board v.
Farnham, 394 F.3d 469, 478 (7th Cir. 2005). Giving
Graham the inferences to which he is entitled, I find that
Graham has stated a claim for deliberate indifference against
Sgt. Itodo, Sgt. J. Piggot, Ofc. Maldonado, and Officer B.
Rei for failing to seek medical care on Graham's behalf
following his fall on December 29, 2017.
filed both informal and formal grievances based on the
December 29, 2017, incident. On January 19, 2018, Graham
submitted a request for healthcare due to ongoing pain in his
shoulder and back. Graham believes officers from K-group then
retaliated against him on January 21, 2018. Following his
shower, at approximately 12:03 a.m. an unspecified officer
locked Graham in his cell with handcuffs on despite his
shoulder and back pain. Graham remained in handcuffs until
round 4:30 a.m., when he was taken to see the
nurse. I cannot permit Graham to proceed on his
retaliation claim, because he cannot proceed against unnamed
individuals. See Wudtke v. Davel, 128 F.3d 1057,
1060 (7th Cir. 1997)(“[I]t is pointless to include
lists of anonymous defendants in federal court; this type of
placeholder does not open the door to relation back under
Fed.R.Civ.P. 15, nor can it otherwise help the
January 22, 2018, Graham submitted two more requests for
healthcare. One asked for treatment for his pain and the
other sought mental health services due to distress
experienced from receiving inadequate medical care and being
retaliated against. On January 26, 2018, Graham saw Mr.
Peyton regarding his mental health concerns. He also saw a
healthcare provider (not identified) that gave him a shot of
Toradol and prescribed him Kop Mobic (an anti-inflammatory
medication). X-rays of his back, right shoulder, and right
hip were taken on January 31, 2018. He has not viewed the
X-rays, and at the time Graham filed his complaint nobody had
explained the findings to him in detail. Graham was seen
by Ms. Thomas, a mental health expert, on February 2, 2018,
and gained some relief from his distress. However, he
requested coping strategies to deal with his current
stresses, but he has not received any information on coping
strategies. Graham was provided with Kop Mobic again on
February 2, 2018, and with a Toradol injection on Feb. 3,
2018. On February 8, 2018, he experienced extreme pain and
“fell out in his cell.” (ECF 1 at 19.) He was
subsequently given a Toradol shot. And then on February 12,
2018, his dose of Kop Mobic was increased to twice daily. He
was also prescribed Pamelor for nerve pain. Although he
requested physical therapy, none was provided. While Graham
indicates he is unhappy with the medical care he has
received, he has not sued any individuals that actually
provided him that care. Graham has sued Corizon, but Corizon
cannot be held liable for damages under § 1983 unless a
policy or custom caused the alleged constitutional violation.
Monell v. Dept. of Social Services, 436 U.S. 658,
694 (1978); Rice v. Corr. Med. Servs., 675 F.3d 650,
675 (7th Cir. 2012) (Monell framework applies to private
company providing medical care at correctional facility).
Graham has not alleged a policy or custom of Corizon's
caused his rights to be violated, so he cannot proceed
24, 2018, Graham woke at 4:20 a.m. and heard “last call
for chow” being announced. He rushed, but he did not
arrive in time for breakfast. He was initially denied
breakfast and went to the checkpoint to pick up his
medication. He saw Sgt. Tustison and Sgt. Zimmerman and asked
who was in charge. He then explained that he could not take
his medication without food, so he needed one of them to
order him a tray so that he could take his medication. Sgt.
Tustison told him that he should not have woke up late and he
could try to take his medication the next day. Graham asked
to see a lieutenant. His request was denied and he was told
to return to his cellhouse. He again asked to see a
lieutenant indicating that his medical needs should not be
denied. Sgt. Tustison then ordered plaintiff to “cuff
up.” Graham gave him his right hand while facing him
with his left hand holding his cane so he could be handcuffed
in front. Sgt. Tustison then swung Graham's right arm
around his back to cuff him. Graham made him aware that he
used a cane and that his shoulder was not mobile in that
direction due to his injuries. Sgt. Tustison then placed
Graham in a headlock and choked him until he blacked out.
When Graham came to, he was cuffed behind the back, in pain,
and being forcibly escorted to the guard hall where Sgt.
Tustison then aggressively pushed Graham's shoulder
against the guard hall door. As noted earlier, a showing that
the force used was not “a good-faith effort to maintain
or restore discipline, but maliciously and sadistically to
cause harm” will support a claim of excessive force.
See Hendrickson, 589 F.3d at 890 (7th Cir. 2009).
Graham has stated a claim against Sgt. Tustison for use of
excessive force in violation of the Eighth Amendment.
further alleges that Sgt. Zimmermann was present but did
nothing to intervene in Sgt. Tustison's use of excessive
force. 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, it can be reasonably inferred that Sgt.
Zimmerman had sufficient time to intervene to prevent harm,
and that he did not do so. Accordingly, Graham will be
permitted to proceed against Sgt. Zimmermann on a claim that
he failed to intervene to prevent harm to Graham in violation
of the Eighth Amendment.
McNeal then came out of the guardhouse and asked Sgt.
Tustison to remove the handcuffs because he was unnecessarily
hurting him. Lt. McNeal took over and released some of the
tension on Graham's shoulder. Graham then explained what
had occurred, and he was provided with a tray so he could
take his medication. Graham's injuries were assessed.
Graham made the medical staff aware that, as a result of the
incident, he had reinjured his shoulder and lower back, and
that he also hurt his neck. Graham was told to fill out a
health care request form. Sgt. Tustison wrote a conduct
report charging Graham with resisting. The charge was
modified to interfering with staff, and Graham was found
guilty of that offense.
25, 2018, Graham filled out a healthcare request form
complaining about his back, shoulder, and neck being
reinjured the previous day. He also wrote a complaint to
internal affairs and wrote to Warden Neal and others making
them aware of this incident. But merely writing a letter
informing someone of the incident does not lead to liability.
Section 1983 “liability depends on each defendant's
knowledge and actions, not on the knowledge or actions of
persons they supervise.” Burks v. Raemisch,
555 F.3d 592, 594 (7th Cir. 2009). “[P]ublic employees
are responsible for their own misdeeds but not for anyone
else's.” Id. Graham has not alleged that
Warden Neal was involved in the June 24, 2018, incident, and
I therefore cannot find that Graham has not stated a claim
1, 2018, Graham was seen by a nurse and told that his scapula
may be fractured or out of place and he would be referred to
the healthcare provider. He was given two Tylenol tablets and
sent back to his cell. X-rays were taken on July 3, 2018.
Nobody shared the findings of the x-ray with him. No. x-rays
were ever taken of his back. Despite his injuries, cuff in
front orders were never issued by the medical staff. Again,
he has not sued any medical defendants here, and has not
alleged that Corizon had a policy or custom that caused his
rights to be violated. Therefore, he cannot proceed on claims
that his medical care was inadequate.
also alleges that Commissioner Carter violated his Due
Process rights by not developing policies to guide
employees' conduct. An allegation of a ‘failure to
train' is available only in limited circumstances,
” and this is not such a case. Cornfield v.
Consolidated High School Dist. No. 230, 991 F.2d 1316,
1327 (7th Cir. 1993). A failure to train claim requires that
“the policymakers had acquiesced in a pattern of
constitutional violations, ” but Graham's complaint
does not allege a pattern of constitutional violations. The
complaint merely makes vague allegations that a lack of
training somehow resulted in Graham's rights being
violated. Thus, I cannot permit Graham to proceed against
Commissioner Carter on his claim that he failed to develop
adequate policies to guide employee's conduct.
further alleges that Warden Neal violated his rights by
failing to keep the sidewalk safe, failing to ensure that
wrongdoers are held accountable, and failing to ensure that
Graham got adequate medical care. But, as already explained,
“public employees are responsible for their own
misdeeds but not for anyone else's.”
Burks, 555 F.3d at 596. Furthermore, “'no
prisoner is entitled to insist that one employee do
another's job,' and the division of labor is critical
to the efficient functioning of the organization.”
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