Dorden v. Acevedo

Full title: YOEMON LETROI DORDEN, Plaintiff, v. OFFICER ACEVEDO, et al., Defendants

Court: United States District Court, N.D. Illinois, Eastern Division

Date published: Aug 23, 2000

No. 99 C 4381 (N.D. Ill. Aug. 23, 2000)

Opinion

No. 99 C 4381.

August 23, 2000.

MEMORANDUM OPINION AND ORDER

HARRY D. LEINENWEBER, U.S. District Court Judge

The plaintiff, currently an inmate at the Shawnee Correctional Center, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983, claiming that the defendants, three officers at Cook County Department of Corrections, violated his constitutional rights by using excessive force against him while he was incarcerated as a pretrial detainee. This matter is before the court for consideration of the defendants' motion for summary judgment.

Background

The plaintiff, Yoemon LeTroi Dorden, was incarcerated at Cook County Department of Corrections ("CCDOC") at the time of the events giving rise to this action. The defendants, Ricardo Acevedo, Edward Khamou, and John Downey, were correctional officers at CCDOC at all times relevant to this case.

According to the Plaintiff, on February 11, 1999, he was leaving his living unit en route to the recreational room when the assigned unit officer, Officer Teiges, gave him an order to obtain a CCDOC shirt as is required attire of all inmates. Plaintiff approached Defendant Khamou and asked him for a shirt. Defendant Khamou ordered Plaintiff back into the recreational room. Plaintiff asked again to obtain the shirt. Arriving on the scene, Defendant Acevedo stated to Defendant Khamou, "You don't have to tell him twice." Defendant Acevedo approached and grabbed Plaintiff by the arm directing him to the "pump room." In the pump room, Plaintiff stood with his back against the wall while Acevedo yelled in his ear and called him "stupid", poked him in the face, and attempted to provoke Plaintiff into a physical altercation. Defendant Acevedo "head-butted" Plaintiff causing his lip to split and swell. Plaintiff swung once to no avail and the defendant Acevedo repeatedly punched him in the face and body before Plaintiff fell to the ground. While Plaintiff was on the ground, the defendants Acevedo, Khamou, and Downing stomped and kicked him. According to Plaintiff Dorden, he suffered emotional distress, mental anguish, a cracked left thumb, a swollen eye, two torn tissues in his lower back, and a swollen lip as a result of the incident. He sought and received medical treatment for his physical injuries.

Defendants response: According to the defendants, on February 11, 1999, Plaintiff approached Defendants Acevedo and Khamou demanding to see the store-room officer. Defendants informed Plaintiff that there was not a store-room officer and told Plaintiff to go back inside the recreational room. Plaintiff did not follow the orders to return inside. Plaintiff was escorted to the Post 3 holding area pending a written reprimand by the defendant Khamou. Escorted towards the holding area by defendants Acevedo and Khamou, Plaintiff became verbally aggressive. At the entrance of the holding area, Plaintiff became physically aggressive as he swung a closed fist punch at the defendant Acevedo, and defendants Khamou and Downing tried to restrain Plaintiff. Defendants Downing and Khamou did restrain Plaintiff, and following this incident, Plaintiff was treated by medical staff.

The following are undisputed facts for purposes of this motion: On February 11, 1999, the Plaintiff was a pre-trial detainee housed in Division 1, Wing F2 of the CCDOC. The defendants were officers on duty at the time of the incident. The incident occurred in the "pump room," and following, defendants Acevedo and Khamou wrote disciplinary reports charging the Plaintiff with: abusive language, being in an unauthorized area, refusing an order by staff, requiring staff to use force, and assault. (See Group Exhibit A). The Inmate Disciplinary Hearing Board found the Plaintiff to have committed the prohibited acts as charged and sentenced him to twenty-nine days in segregation (Group Exhibit A and Exhibit B). On March 16, 1999, Plaintiff filed a grievance with the CCDOC against the defendants concerning this incident. Plaintiffs conviction has never been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus (Exhibit B).

STANDARD OF LAW

Summary judgment will be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); O'Conner v. Depaul Univ., 123 F.3d 665, 669 (7th Cir. 1997). In weighing a motion for summary judgment, the court must take the facts in the light most favorable to the party opposing the motion and draw all reasonable inferences in that party's favor. Bahl v. Royal Indemnity Co., 115 F.3d 1283, 1289 (7^th Cir. 1997); Condo v. Sysco Corp., 1 F.3d 599, 601 (7^th Cir. 1993), cert. denied, 114 S.Ct. 1051 (1994). The party opposing the motion must present evidence of a triable issue of material fact. See Vance v. Peters, 97 F.3d 987, 990 (7^th Cir. 1996), cert. denied, 117 S.Ct. 1822 (1997). The non-moving party is required to go beyond the pleadings and designate specific facts showing a genuine issue for trial. Bank-Leumi Le-Israel, B. M. v. Lee, 928 F.2d 232, 236 (7^th Cir. 1991). Moreover, a fact is material when it would determine the outcome under the governing law. Whetstine v. Gate Rubber Co., 895 F.2d 388, 392 (7^th Cir. 1990). A material fact is genuinely in dispute when "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

DISCUSSION

In ruling on a motion for summary judgment, the court cannot weigh the affidavits or the credibility of the parties. Valentine v. Joliet Tp. High School Dist. No. 204, 802 F.2d 981, 986 (7^th Cir. 1986). The intentional use of excessive force by prison guards against an inmate without penological justification constitutes cruel and unusual punishment violative of the Eighth Amendment and actionable under 42 U.S.C. § 1983. Hudson v. McMillian, 503 U.S. 1, 9 (1992). After conviction, the Eighth Amendment protects prisoners from the deliberate use of force challenged as excessive and unjustified. Graham v. Connor, 490 U.S. 386, 395 (1989). Before conviction, the Due Process Clause of the Fourteenth Amendment protects a pretrial detainee from the use of excessive force that amounts to punishment. Graham, 490 U.S. at 395; See Bell v. Wolfish, 441 U.S. 520, 535-539 (1979). Therefore, because Plaintiff was a pretrial detainee, the Fourteenth Amendment applies to this case. When officers use force to restrain an inmate the question is "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." Hudson, 503 U.S. at 6. Relevant factors in determining whether force was excessive include the nature and extent of the harm, the need for force, the threat to safety of staff and inmates, and the extent of the injury inflicted on the inmate. Lunsford v. Bennett, 17 F.3d 1574, 1581 (7th Cir. 1994). All of these relevant factors are issues of fact to be determined by the court.

Defendants claim that they did not use excessive force, but rather restrained Plaintiff with necessary force when he became physically aggressive toward defendant Acevedo. But this is a legal conclusion that can only be reached after a factual determination, based on the factors outlined in Lunsford v. Bennett, supra. Defendants further claim that because Plaintiff was disciplined for the incident, the force they used was, therefore, necessary and not excessive. This claim ignores that the amount of force used compared to the amount of force necessary is a factual issue, regardless of whether or not the Plaintiff was later disciplined for his behavior. It is defendants' behavior, not Plaintiffs behavior, that is the subject of this lawsuit.

Furthermore, their version of the altercation giving rise to the use of force also differs entirely from Plaintiff's version. Plaintiff claims that defendant Acevedo violently attacked him for asking defendant Khamou for a CCDOC shirt a second time; defendants, as outlined above, present an entirely different factual background for the incident. Such an intensely factual dispute cannot be resolved by way of summary judgment.

Moreover, while the prohibition against "cruel and unusual" punishment necessarily excludes from constitutional recognition de minimis uses of physical force, see Hudson, 503 U.S. at 9-10, the Plaintiff describes an unprovoked use of force that is the sort "repugnant to the conscience of mankind." Id. Although a prison guard's liability for the excessive use of force under 42 U.S.C. § 1983 is not co-extensive with common law tort liability for battery, Davis v. Lane, 814 F.2d 397, 400 (7^th Cir. 1987), this case involves allegations of more than a passing thump. The Plaintiff will be permitted to proceed on his claims.

CONCLUSION

For the above reasons, the defendants' motion for sum judgment is denied.