United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
February 6, 2019, Plaintiff Cedrik Tujubikila, who is
currently confined in McHenry County Jail in Woodstock,
Illinois and proceeding pro se, filed a complaint
under 42 U.S.C. § 1983, alleging that his civil rights
were violated. The court dismissed Tujibikila's complaint
and directed him to file an amended complaint, which he did.
The court screened the amended complaint and allowed
Tujibikila to proceed on an Eighth Amendment claim against
Corporal Dan Neaf, but not against Officer M. Thorn.
Tujibikila subsequently filed a motion to reconsider the
court's screening order dismissing Thorn, which the court
denied. Neaf filed an answer to the amended complaint on
August 9, 2019, and Tujibikila filed a second amended
complaint as a matter of course on August 27, 2019. The court
screened the complaint on August 30, 2019. The court found
that the complaint stated a claim against Thorn, but did not
contain any allegations against Neaf. The court accordingly
dismissed Neaf as a defendant. Tujibikila also filed a
request for interpretation of the court's order denying
his motion for reconsideration. As it appeared Tujibikila
sought to assert claims against both Thorn and Neaf, the
court granted leave for Tujibikila to file a single, amended
complaint and, if timely received, would screen the complaint
pursuant to 28 U.S.C. § 1915A. Presently before the
court is the amended complaint Tujibikila filed subsequent to
of the Complaint
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b). A claim is legally frivolous when it lacks an
arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992); Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hutchinson ex
rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).
state a cognizable claim under the federal notice pleading
system, Plaintiff is required to provide a “short and
plain statement of the claim showing that [he] is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The complaint must
contain sufficient factual matter “that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). The court accepts the factual
allegations as true and liberally construes them in the
plaintiff's favor. Turley v. Rednour, 729 F.3d
645, 651 (7th Cir. 2013). Nevertheless, the complaint's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
of the Third Amended Complaint
alleges that, on January 2, 2019, while housed in segregation
H-West at Kenosha County Detention Center, about ten prison
guards-including Defendants Officer M. Thorn, Corporal Dan
Neaf, Officer Kumara, Officer Cliff, and Sergeant John
Doe-entered H-West and informed an inmate that he was being
transferred to another facility. The inmate refused. Neaf
then told Thorn to administer a chemical agent, identified as
the “can of fog.” Dkt. No. 48 at 3. According to
Tujibikila, Thorn over-administered the agent, causing him
great bodily harm to the point where he was coughing up
blood. Tujibikila observed all of the guards and other
inmates coughing, gaging, and choking due to the agent.
Tujibikila also states that the chemical agent was not the
“regular” pepper spray that the guards carry at
all times, but a different chemical agent with harmful
effects. Defendants only stayed in the area about five
minutes due to the intensity of the chemical agent, according
gave orders to remove two inmates from the area where the
chemical agent was deployed, but did not, however, remove
Tujibikila from his cell or give him the opportunity to
receive medical attention. Tujibikila said he and other
inmates begged Neaf and Sergeant John Doe to remove them to a
safe area and provide medical care and a decontamination
shower; Tujibikila says he was ignored for two hours.
also states that Thorn heard him beg repeatedly for medical
attention and did not respond to his request to be removed
from his cell because Tujibikila was coughing up blood and
suffocating. Tujibikila alleges Thorn denied him a shower to
decontaminate and left him in his cell for two hours to
addition, Tujibikila states that he made repeated requests to
Cliff and Kumara for medical care, which were denied.
Eighth Amendment to the Constitution “prohibits
‘cruel and unusual punishments' and has been
interpreted by the United States Supreme Court to encompass
the ‘unnecessary and wanton infliction of
pain' upon prisoners in a correctional
institution.” Harper v. Albert, 400 F.3d 1052,
1065 (7th Cir. 2005) (quoting Wilson v. Seiter, 501
U.S. 294, 296 (1991)). “[W]henever prison officials
stand accused of using excessive physical force in violation
of the Cruel and Unusual Punishment Clause, the core judicial
inquiry is . . . whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Hudson v.
McMillian, 503 U.S. 1, 6-7 (1992). Prison guards
“may use chemical sprays when reasonably necessary to
subdue recalcitrant prisoners, ” Kervin v.
Barnes, 144 Fed.Appx. 551, 552 (7th Cir. 2005), but the
use of such chemical sprays violates the Eighth Amendment
when “used in quantities greater than necessary to
maintain discipline or for the sole purpose of punishment or
the infliction of pain.” Lindsey v. Boughton,
No. 17-cv-52-jdp, 2018 WL 3824143, at *4 (W.D. Wis. Aug. 10,
2018) (citation and internal quotation marks omitted).
may proceed on an Eighth Amendment excessive force claim
against Thorn. While it is not clear from the complaint
whether Tujibikila was sprayed directly or merely exposed as
a bystander, “[b]ystander exposure to pepper spray is
analyzed under the same legal test. Even when bystanders do
nothing to necessitate the use of pepper spray, there is no
constitutional violation unless officers are shown to have
acted maliciously and with the intent to harm.”
Id. at *5. Tujibikila does not challenge Thorn's
use of a chemical spray in the first instance, but rather
challenges Thorn's allegedly excessive and wanton
application of the spray. Because his claim concerns
how the spray was administered rather than
that the spray was used, Neaf's authorization
for Thorn to use the spray is not at issue. See Ward v.
Hoffman, No. 14-cv-00509-MJR, 2014 WL 2442657, at *2
(S.D. Ill. May 30, 2014) (“[T]he use of pepper spray
does not constitute a per se violation of the Eighth
Amendment.” (citing Soto v. Dickey, 744 F.2d
1260, 1270 (7th Cir. 1984)). However, Tujibikila's
allegation that the chemical spray was applied in manner that
resulted in him coughing up blood is sufficient to raise an
inference that the amount used was excessive. Tujibikila may
therefore proceed on an Eighth Amendment claim against Thorn
for excessive use of force.
separate allegations that he made each Defendant aware of his
medical needs and was not removed from his cell or permitted
to receive medical attention are sufficient to raise claims
under a deliberate indifference theory. Stating such an
Eighth Amendment claim requires allegations of an objectively
serious medical condition and an official's deliberate,
i.e. subjective, indifference to that condition. See
Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015).
The medical condition must be objectively and subjectively
serious. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
2011). “A medical need is considered sufficiently
serious if the inmate's condition ‘has been
diagnosed by a physician as mandating treatment or . . . is
so obvious that even a lay person would perceive the need for
a doctor's attention.'” Id. (citing
Greeno v. Daley, 414 F.3d 645, 653 (7th Cir.2005)).
Notably, “[a] medical condition need not be
life-threatening to be serious; rather, it could be a
condition that would result in further significant injury or
unnecessary and wanton infliction of pain if not
treated.” Gayton v. McCoy, 593 F.3d 610, 620
(7th Cir. 2010). To satisfy the ...