THOMAS M. DURKIN, District Judge.
Plaintiff Glenn Verser filed this pro se lawsuit against four correctional officers and a physician at the Stateville Correctional Center in Crest Hill, Illinois ("Stateville").
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with "fair notice" of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This "standard demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Aschcroft v. Iqbal, 556 U.S. 662, 678 (2009). While "detailed factual allegations" are not required, "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. The complaint must "contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged." Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In evaluating a pro se complaint, the Court applies a less stringent standard than formal pleadings drafted by lawyers. Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015).
The following facts are alleged in the complaint and assumed true for purposes of Myles's motion to dismiss, with all reasonable inferences drawn in favor of Verser. See Mann, 707 F.3d at 877. On May 10, 2012, Verser needed to be transported outside the prison to attend a state court hearing in his criminal case. In preparing Verser for transportation to the courthouse, Myles
In her motion to dismiss, Myles argues that the mere application of single handcuffs and a black box for purposes of transporting Verser outside the prison fails to state a claim under the Eighth Amendment's prohibition on cruel and unusual punishment. Myles does not cite any case law in support of this argument. Nevertheless, Myles is correct that the use of single handcuffs with a black box in and of itself is not a violation of the Eighth Amendment. The leading case on this is the Fifth Circuit's decision in Fulford v. King, 692 F.2d 11, 14 (5th Cir. 1982), holding that the use of a black box is justified "by the greater risk of escape when prisoners are outside the institution and [by] the reduced number of guards available to oversee the prisoners during those journeys." The Seventh Circuit cited to Fulford, stating that it was "clearly established" law "that use of the black box in the transportation of prisoners outside the prison d[oes] not violate the eighth amendment." Knox, 998 F.2d at 1410. Numerous other courts have held the same. See, e.g., Moody v. Proctor, 986 F.2d 239, 241 (8th Cir. 1993) ("a policy requiring all prisoners to wear a black box when outside of the prison does not violate the Eighth Amendment because, although the black box causes discomfort, its use is penologically justified"); Treece v. Andrews, 2005 WL 5444344, at *7 (W.D. La. Mar. 2, 2005) (dismissing black box claim as being frivolous upon review under 28 U.S.C. § 1915(e)(2)(B)(i), holding that "[t]here is no question but that the use of the complained of restraining devices constitutes a justified security measure considering that plaintiff is away from the prison setting").
The problem with Myles's argument is that Verser does not allege an Eighth Amendment violation simply because Myles used single cuffs with a black box. He alleges an Eighth Amendment violation because Myles used single cuffs with a black box despite his informing her that he had a medical permit requiring that only double cuffs be used on him. See, e.g., Perez v. Jackson, 2000 WL 893445, at *2 (E.D. Pa. June 30, 2000) ("The issue presented here is not the need for a type of restraint which is inherently discomforting, but the unnecessary use of a painful means of restraint when an alternative is available and specifically prescribed by a prison physician.").
The Court must assume for purposes of Myles's Rule 12(b)(6) motion to dismiss that Verser had a medical permit requiring the use of double cuffs,
Here the inference is plausible that Myles used a black box maliciously and sadistically because Verser alleges that (1) he had a permit and told Myles about it; (2) another officer, while tightening the handcuffs, said something indicating a possible retaliatory motive for doing so, and it can be inferred from the complaint that Myles was present and heard/witnessed this other officer's words and conduct; and (3) after the other officer made the retaliatory comment, Myles refused to loosen the cuffs even though a supervisor instructed her to do so. It is not too farfetched to infer a malicious and sadistic motive from a refusal to obey an order given by a supervisor. This alleged refusal, if believed, speaks both to whether Myles initially placed the single cuffs with a black box on Verser knowingly disregarding Verser's medical permit for reasons that were malicious and sadistic, and also to whether Myles later acted maliciously and sadistically to cause harm when she repeatedly ignored Verser's complaints about the handcuffs being too tight.
Sidestepping the issue of whether Verser has alleged facts that plausibly suggest Myles used single cuffs with a black box maliciously and sadistically rather than for actual security reasons, Myles focuses instead on the argument that Verser suffered at most a de minimis injury. But the Supreme Court has said that it is error to "giv[e] decisive weight to the purportedly de minimis nature of [an inmate's] injuries." Wilkins v. Gaddy, 559 U.S. 34, 37 (2010).
Wilkins, 559 U.S. at 39. In other words, the degree to which Verser was injured is not controlling of his Eighth Amendment claim. Instead, "a court should examine a variety of factors in conducting this inquiry, including the need for an application of force, the relationship between that need and the force applied, the threat reasonably perceived by the responsible officers, the efforts made to temper the severity of the force employed, and the extent of the injury suffered by the prisoner." DeWalt, 224 F.3d at 619 (emphasis added) (citing Hudson, 503 U.S. at 7). While a de minimis injury might "strongly suggest" that the force applied was de minimis, Outlaw v. Newkirk, 259 F.3d 833, 839 (7th Cir. 2001), it is not itself dispositive such that dismissal on the pleadings is warranted. See Majette v. GEO Group, Inc., 2009 WL 2434805 (E.D. Va. Aug. 6, 2009) (rejecting defendants' de minimis argument from handcuffing incident as raising issues more appropriately resolved at summary judgment stage).
Citing Tibbs v. City of Chicago, 469 F.3d 661 (7th Cir. 2006), Myles also argues that Verser does not allege that he ever told her about any injury, numbness, or pain from the handcuffs, or that he ever sought medical treatment for those things. In Tibbs, the Seventh Circuit noted that it "ha[d] on occasion recognized valid excessive force claims based on overly tight handcuffs." Id. at 666. The court rejected such a claim in that case, however, because
Id.
To begin with, Tibbs deals with an excessive force claim under the Fourth Amendment. But even if the same standard applies to excessive force claims in the Fourth Amendment context as those under the Eighth Amendment (a question the Court does not decide),
The fact that Verser does not allege additional details in support of his excessive force claim, such as how long he was handcuffed, the degree to which he elaborated on his pain when he complained to Myles, the degree to which he manifested any physical injury from the handcuffs, and whether he sought medical treatment afterwards, does not warrant dismissal. Verser "does not have to plead evidence." American Nurses' Ass'n v. Illinois, 783 F.2d 716, 727 (7th Cir. 1986). "[A] a complaint is not required to allege all, or any, of the facts logically entailed by the claim," nor does it "fail to state a claim merely because it does not set forth a complete and convincing picture of the alleged wrong." Id. Myles's arguments are more appropriately made on a motion for summary judgment, not a motion to dismiss. See, e.g., Perez, 2000 WL 893445, at *2.
Finally, Myles suggests that Verser's Eighth Amendment claim should be separated into two different parts: (1) the initial placement of the handcuffs and black box on Verser; and (2) Myles "failure to intervene" after another correctional officer tightened the handcuffs. Characterizing Verser's Eighth Amendment claim after the initial placement of the handcuffs as a "failure to intervene" in another correctional officer's use of force, however, belies Verser's allegations that Myles also refused to loosen the handcuffs after her supervisor told her to do so and ignored Verser's repeated complaints that the handcuffs were too tight. These allegations state a plausible claim of excessive force against Myles, even if the handcuffs were tightened by another officer. See, e.g., Bane v. Virginia Dep't of Corr., 267 F.Supp.2d 514, 530-31 (W.D. Va. 2003) (holding that, where plaintiff alleged that one correctional officer used excessive force in placing him in handcuffs "with full knowledge of the medical waiver" and second officer "took part in the events leading up to the handcuffing by the first officer and then stood by while the first officer handcuffed the plaintiff, the second officer also may be liable for excessive force "even though he did not lay a hand on the Plaintiff").
The last issue for the Court is Verser's retaliation claim. As a general proposition, prison officials may not retaliate against a prisoner for filing lawsuits against them. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). Recognizing that any perceptible slight might be deemed retaliatory in the prison setting, the Seventh Circuit has emphasized that
Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988).
The complaint alleges that Verser engaged in the protected activity of filing a lawsuit in 2010 against several correctional officers that related to another handcuffing incident (the Hubbard case, quoted earlier in this opinion). The complaint further alleges that another officer, who is also a defendant here, Smith, approached Verser after Myles put the single cuffs on him and tightened those cuffs, saying "this is what you get for suing Malone." The complaint then alleges that Verser complained to Nickerson about the tightness and repeated what he told Myles about having a medical permit, and that Nickerson called a prison physician to find out about the permit and then directed Myles to loosen the cuffs. The complaint alleges that Myles refused to follow Nickerson's order and did not loosen the cuffs. This all took place one day after Judge Bucklo issued a ruling in Hubbard denying Officer Malone's motion for summary judgment on Verser's excessive force claim. While it was Smith, and not Myles, who allegedly tightened Verser's handcuffs and said "this is what you get for suing Malone," the chronology of events, including Myles's alleged refusal to loosen the cuffs at the direction of a supervisor—a refusal that occurred after Smith made the comment about Malone— suggests the possibility that Myles shared the retaliatory intent of Smith. Therefore, the Court also will not dismiss Verser's retaliation claim against Myles at this stage of the proceedings.
For the foregoing reasons, the Motion to Dismiss filed by Defendant Myles, R.127, is denied without prejudice to raising the same issues again in a motion for summary judgment.
Knox v. McGinnis, 998 F.2d 1405, 1407 (7th Cir. 1993).
Verser v. Hubbard, No. 10-cv-7513, 2014 WL 2514578, at *2 (N.D. Ill. June 3, 2014). As the Court understands it, a black box can only be used with single handcuffs. Therefore, a double-cuffing permit, if in fact one had been issued to Verser, would have prohibited the use of single cuffs with a black box.
