Opinion
3:22-CV-1046-DRL-MGG
05-05-2023
BRANDON LEE JOHNSON, Plaintiff, v. RON NEAL et al., Defendants.
OPINION AND ORDER
DAMON R. LEICHTY, JUDGE UNITED STATES DISTRICT COURT
Brandon Lee Johnson, a prisoner without a lawyer, filed an amended complaint naming thirteen defendants: Warden Ron Neal, Assistant Warden Mark Newkirk, Lt. Wilson, Sgt. Allman, Sgt. Brandon Stovall, Correctional Officer Wheeler, Correctional Officer Flores, Correctional Officer Gram, Nathan W. Bates, John Doe 1 (a nurse), John Doe 2 (a nurse possibly named Todd), John Doe 3 (a Correctional Officer in E-squad), and Malissa Lessner. ECF 8. “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, under 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.
The complaint lists fourteen separate defendants, but Correctional Officer Gram is listed twice. ECF 8 at 2.
Mr. Johnson alleges that, on May 3, 2021, Defendant John Doe 3 (a correctional officer in E-squad) and Officer Flores woke him up and told him to strip out, cuff up, and get in the shower. Mr. Johnson followed their orders. Sgt. Allmon then pointed a gas gun in his face. When Mr. Johnson asked Sgt. Allmon to get the gun out of his face, Sgt. Allmon called Mr. Johnson a “nigger” and ordered him to go up the stairs. Sgt. Allmon passed his gun to Sgt. Wheeler, who also had a gun. Sgt. Allman then aggressively grabbed Mr. Johnson's left arm and picked him up off the ground while holding only his arm and shoulder. John Doe 3 and Sgt. Allmon then carried Mr. Johnson up a flight of stairs while pulling on his shoulder and calling him a “nigger” and “bitch.” He was placed in a cell. Officer Flores took the cuffs off, and Mr. Johnson heard a loud popping sound and hollered. Mr. Johnson asked Lt. Wilson, who heard Mr. Johnson when he hollered, why Sgt. Allmon pointed the gun at Mr. Johnson. Sgt. Allmon indicated it was because Mr. Johnson headbutted Officer Flores. Mr. Johnson asked Officer Flores if he headbutted her, and she denied it. Lt. Wilson knows that Officer Flores denied that Mr. Johnson headbutted her.
Under the Eighth Amendment, prisoners cannot be subjected to cruel and unusual punishment. See Farmer v. Brennan, 511 U.S. 825, 833-34 (1994). 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. “An Eighth Amendment claim based on the infliction of psychological pain on an inmate requires (1) objectively, sufficiently serious misconduct, and, (2) subjectively, an intent to wantonly inflict psychological pain for no legitimate purpose.” Snow v. List, No. 11-CV-3411, 2014 WL 1515613, 1 (C.D. Ill. April 17, 2014) (citing Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003)). Standing alone, “[t]he use of derogatory language, while unprofessional and deplorable,” isn't serious enough to violate the Constitution. DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000), abrogated on other grounds by Savory v. Cannon, 947 F.3d 409, 422 (7th Cir.), cert. denied, 141 S.Ct. 251, 208 L.Ed.2d 24 (2020). Racial harassment alone, offensive as it is but with no realistic threat of harm, isn't “cruel and unusual punishment” under Eighth Amendment standards. Dobbey v. Illinois Department of Corrections, 574 F.3d 443, 446 (7th Cir. 2009) (providing examples of conduct that rises to the level of cruel and unusual conduct, including pointing a gun and threatening to shoot while using racial epithets). Giving Mr. Johnson the inferences to which he is entitled at this stage, he states a plausible Eighth Amendment claims against John Doe 3 and Sgt. Allmon.
Mr. Johnson is also suing Sgt. Allmon and John Doe 3 for assault and battery under Indiana law. 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, Mr. Johnson doesn't mention filing a tort claim notice and it isn't plausible to infer that he did. Therefore, he cannot proceed on his state law claims of assault and battery.
Mr. Johnson alleges that Officer Wheeler, Officer Flores, Sgt. Brandon Stovall, and Lt. Wilson should have intervened to stop the assault. He says that Officer Wheeler and Officer Flores witnessed the encounter, but he concedes that Lt. Wilson didn't become aware of the incident until he was uncuffed. He alleges that Sgt. Stovall didn't intervene, but Mr. Johnson doesn't allege that Sgt. Stovall had knowledge of the attack while it was occurring. 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, Mr. Johnson hasn't plausibly alleged that Officer Wheeler, Officer Flores, Sgt. Stovall, or Lt. Wilson had a realistic opportunity to step forward and prevent Sgt. Allmon or John Doe 3 from violating his rights. Therefore, Mr. Johnson won't be granted leave to proceed on this claim.
Mr. Johnson also alleges that Sgt. Stovall didn't do anything to clean up his cell, which was apparently covered in OC spray. Mr. Johnson does not provide any further details regarding the condition of his cell and does not describe any interactions with Sgt. Stovall regarding the condition of his cell. Therefore, these allegations are too vague to state a claim.
Mr. Johnson also sued numerous defendants who allegedly denied him medical treatment for his injuries. Under the Eighth Amendment, inmates are entitled to constitutionally 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). Deliberate indifference means 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).
For a medical professional to be held liable for deliberate indifference to an inmate's medical needs, he or she must make a decision that represents “such a substantial departure from accepted professional judgment, practice, or standards, as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008) (quotations and citations omitted). A mere disagreement with medical professionals about the appropriate course of treatment doesn't establish deliberate indifference, nor does negligence or even medical malpractice. Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); McNeil, 16 F.3d 123 at 124; Estelle v. Gamble, 429 U.S. 97, 106 (1976) (negligence or medical malpractice do not constitute deliberate indifference). Even incompetence doesn't state a claim for deliberate indifference. Minix v. Canarecci, 597 F.3d 824, 831-32 (7th Cir. 2010). Furthermore, inmates are neither “entitled to demand specific care [nor] entitled to the best care possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).
Mr. Johnson alleges that he asked Lt. Wilson to be seen by medical. Lt. Wilson said he was busy but that Mr. Johnson would be seen. Mr. Johnson wasn't seen that day or the next day. These allegations do not rise to the level of deliberate indifference. Therefore, he cannot proceed against Lt. Wilson.
Thereafter, John Doe 1 checked Mr. Johnson's vitals and asked him to do some exercises, but Mr. Johnson couldn't do most of them. During the examination, Mr. Johnson says his shoulder was reinjured. Mr. Johnson asked for an x-ray or MRI. His request was declined, and John Doe 1 determined that Mr. Johnson could still be cuffed behind his back. These allegations may support a finding that John Doe 1 was negligent or incompetent, but they also do not rise to the level of deliberate indifference. Therefore, he cannot proceed against John Doe 1.
John Doe 2 ordered an x-ray for Mr. Johnson, but it wasn't performed right away, and it didn't show anything was wrong. Mr. Johnson says he filed several sick call requests over the course of a year and was provided with Tylenol and other medications, although he doesn't know the name of the other medications. During one visit, John Doe 2 pulled his arm up, which caused Mr. Johnson pain; Mr. Johnson walked out of her office. At some point (he doesn't say when), John Doe 2 ordered PT for Mr. Johnson. The amended complaint does not include facts from which it can be plausibly inferred that John Doe 2 departed from accepted professional judgment in assessing Mr. Johnson. Again, the facts alleged support at most a conclusion that John Doe 2 was negligent or incompetent. Therefore, he may not proceed against John Doe 2.
On May 5, 2022, Mr. Johnson saw Nathan Bates, a physical therapist. Mr. Johnson asked Mr. Bates if he could identify a problem after so much time had passed; he said no. It is unclear why Mr. Johnson is suing Nathan Bates; he could not control when physical therapy was ordered and isn't responsible for the delay between the injury and when John Doe 2 ordered physical therapy. His inability to assist at that late time doesn't permit an inference that he was deliberately indifferent. Therefore, he cannot proceed against Nathan Bates.
Mr. Johnson has also sued several correctional officers who were not present when he was injured but learned of his injury and didn't do anything to ensure he had further medical care. Sgt. Stovall was the sergeant in the unit and didn't help him get proper medical care. Officer Gram, a counselor, also failed to help him get further medical care.Assistant Warden Mark Newkirk knew about the shoulder injury, didn't help him get care, and required him to cuff behind his back. Mr. Johnson was assessed by medical staff. He does not allege that any member of the medical staff ordered that he not be cuffed behind his back. And, his shoulder injury, as described, was not so obvious that even a lay person would easily recognize the necessity for a doctor's attention. Therefore, he cannot proceed against Sgt. Stovall, Officer Gram, or Assistant Warden Mark Newkirk on these claims.
Mr. Johnson further alleges that Officer Gram filed a false report saying Mr. Johnson refused to cuff up, but Mr. Johnson could not cuff up because of pain. He provides no further details. This allegation is too vague to state a claim.
Mr. Johnson also faults Assistant Warden Newkirk for various conditions of confinement, but his allegations are vague and seemingly unconnected to the other allegations of the complaint.
Mr. Johnson filed many grievances, including an emergency grievance. Malissa Lessner denied every grievance. In response to the emergency grievance, Mr. Johnson was told only that there was a backlog of grievances. Mr. Thompson, however, has no constitutional right to access the grievance process. See Grieveson v. Anderson, 538 F.3d 763, 770 (7th Cir. 2008) (noting that there is not a Fourteenth Amendment substantive due process right to an inmate grievance procedure).
At some point, Mr. Johnson went on a hunger strike. He told Warden Ron Neal why he was on the hunger strike (although his complaint doesn't explain why he was on a hunger strike). Warden Neal allegedly said he would get him out of DCH. Instead, Mr. Johnson received paperwork saying he was being held there pending conduct reports. These allegations are somewhat vague, but don't suggest that Warden Neal violated any of Mr. Johnson's constitutional rights.
Mr. Johnson claims that Warden Neal, Malissa Lessner, and Mark Newkirk knew of a pattern of physical abuse of inmates by Sgt. Allman and John Doe 3 and failed to take disciplinary or other action to curb that abuse. Supervisory staff can be held liable for a constitutional violation if they “know about the conduct and facilitate it, approve it, condone it, or turn a blind eye.” Doe v. Purdue Univ., 928 F.3d 652, 664 (7th Cir 2019). However, the amended complaint doesn't allege facts supporting Mr. Johnson's conclusory statement. Therefore, he cannot proceed against Warden Neal, Malissa Lessner, or Mark Newkirk for facilitating, approving, condoning, or turning a blind eye toward the alleged acts of Sgt. Allman and John Doe 3.
For these reasons, the court:
(1) GRANTS Brandon Lee Johnson leave to proceed against John Doe 3 and Sgt. Allman in their individual capacities for compensatory and punitive damages for using excessive force and cruel and unusual punishment against Mr. Johnson on May 3, 2021, in violation of the Eighth Amendment;
(2) DISMISSES all other claims;
(3) DISMISSES Warden Ron Neal, Assistant Warden Mark Newkirk, Lt. Wilson, Sgt. Brandon Stovall, Correctional Officer Wheeler, Correctional Officer Flores, Correctional Officer Gram, Nathan W. Bates, John Doe 1 (a nurse), John Doe 2 (a nurse possibly named Todd), and Malissa Lessner;
(4) DIRECTS the clerk, under 28 U.S.C. § 1915(d), to request Waiver of Service from (and if necessary, the United States Marshals Service to use any lawful means to locate and serve process on) Sgt. Allmon at the Indiana Department of Correction, with a copy of this order and the amended complaint (ECF 5);
(5) ORDERS the Indiana Department of Correction to provide the full name, date of birth, and last known home address of any defendant who does not waive service if it has such information; and
(6) ORDERS, under 42 U.S.C. § 1997e(g)(2), Sgt. Allmon to respond, as provided for in the Federal Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the claims for which the plaintiff has been granted leave to proceed in this screening order.
SO ORDERED.