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Tujibikila v. Neaf

United States District Court, E.D. Wisconsin

October 17, 2019

CORPORAL NEAF, et al., Defendants.


          William C. Griesbach, Chief Judge United States District Court

         On 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 this order.

         Screening of the Complaint

         The 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).

         To 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).

         Allegations of the Third Amended Complaint

         Tujibikila 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 to Tujibikila.

         Neaf 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.

         Tujibikila 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 suffocate.

         In addition, Tujibikila states that he made repeated requests to Cliff and Kumara for medical care, which were denied.

         The Court's Analysis

         The 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).

         Tujibikila 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.

         Tujibikila's 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 ...

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