UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

CHARLES MCCREARY, )

)

Plaintiff, )

)

v. ) No. 1:13 CV 2 

)

DANIEL INGRAM, et al., )

)

Defendants. )

OPINION AND ORDER

Charles McCreary, a pro se prisoner, filed an amended complaint under 42 U.S.C.

§ 1983. (DE # 10.) Pursuant to 28 U.S.C. § 1915A, the court must review a complaint

filed by a prisoner and dismiss it if the action is frivolous or malicious, fails to state a

claim for relief, or seeks monetary relief against a defendant who is immune from such

relief. 28 U.S.C. § 1915A(a), (b). To survive dismissal, the complaint must state a claim

for relief that is plausible on its face. Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d 599,

602-03 (7th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. at 603. In other words, “a plaintiff must do better

than putting a few words on paper that, in the hands of an imaginative reader, might

suggest that something has happened to her that might be redressed by the law.”

Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original).

Nevertheless, a pro se complaint “must be held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).

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Here, McCreary claims that four officers from the Fort Wayne Police Department

used excessive force in effectuating his arrest on March 17, 2012. The events giving rise

to the lawsuit occurred when Officers Daniel Ingram, Jessica Ingram, Nolan E. Banks,

and Jeffery McCann responded to a domestic dispute call from McCreary’s former

girlfriend. In the course of this incident McCreary alleges that Officer Banks kicked in

his apartment door as he was closing it, causing the door to hit him the face. Once

inside the officers allegedly “power slammed” him to the ground, and pushed their

knees into his back and ribs, even though he was not resisting. The officers then “hog

tied” his arms and legs and carried him outside, in the process dislocating his shoulder

and causing his head to knock into a wall. While he was sitting in squad car with his

hands cuffed behind his back, Officer McCann allegedly sprayed him in the face with

pepper spray for no reason. He was then taken to the Allen County Jail and placed in a

padded room by Officer Banks, without being seen by a doctor or having an

opportunity to flush the pepper spray out of his eyes. He asserts that the officers’

actions caused him significant pain and suffering, and also resulted in medical bills and

lost wages.

The Fourth Amendment guarantees the “right of people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.

CONST. amend. IV. Under the Fourth Amendment, an officer’s right to arrest an

individual includes the right to use some degree of physical force, but the use of force

must be objectively reasonable in light of the totality of the circumstances. Graham v.

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Connor, 490 U.S. 386, 396 (1989). “Determining whether the force used to effect a

particular seizure is reasonable under the Fourth Amendment requires a careful

balancing of the nature and quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing governmental interests at stake.” Id.

(quotation marks and citations omitted). Factors to consider include the severity of the

crime at issue, whether the suspect posed an immediate threat to the safety of the

officers or others, and whether he was resisting arrest or attempting to evade arrest by

flight. Id.

Under the Fourth Amendment, an arrestee also has a right to be provided with

adequate medical care. Williams v. Rodriguez, 509 F.3d 392, 403 (7th Cir. 2007). The court

considers four factors in determining whether an arresting officer’s denial of medical

care was “objectively unreasonable”: the officer’s notice of the arrestee’s medical needs,

the seriousness of those medical needs, the scope of the requested treatment, and the

interests of the police, including administrative, penological, or investigatory concerns.

Id. at 403-404; Sides v. City of Champaign, 496 F.3d 820, 828 (7th Cir. 2007). The standard

for establishing a claim is lower than is needed to establish deliberate indifference

under either the Eighth or Fourteenth Amendments. Williams, 509 F.3d at 403. 

Here, McCreary alleges that the officers were responding to a call about a

domestic dispute. He claims that even though he was not resisting in any way, the

officers kicked a door into his face, tackled him to the ground, hog-tied him, dislocated

his shoulder, banged his head into a wall, and pepper-sprayed him in the face.

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Although further factual development may show that the officers’ use of force was

reasonable under the circumstances, at this stage the court must accept McCreary’s

allegations as true. Giving him the inferences to which he is entitled, he has alleged a

plausible excessive force claim against the officers.

McCreary further alleges that Officer Banks took him to lock-up at the jail

instead of taking him to be evaluated by a doctor, despite that he had suffered a serious

blow to his head and a dislocated shoulder, and was experiencing significant pain and

burning in his eyes from the pepper spray. Although it appears McCreary was

eventually seen and treated by medical staff at the jail, giving him the inferences to

which he is entitled at this stage, he has alleged a plausible claim against Officer Banks

for denying him adequate medical care following his arrest.

As a final matter, McCreary seeks leave to proceed in forma pauperis (DE #11), but

since he has already been granted leave to proceed in forma pauperis in this action, the

motion will be denied as unnecessary.

For the reasons set forth above, the court: 

(1) DENIES the plaintiff’s in forma pauperis petition (DE # 11) as unnecessary;

(2) GRANTS the plaintiff leave to proceed against Daniel Ingram, Jessica

Ingram, Nolan E. Banks, and Jeffery McCann in their individual capacities for

compensatory damages for using excessive force to effect his arrest on March 17, 2012; 

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(3) GRANTS the plaintiff leave to proceed against Nolan E. Banks in his

individual capacity for compensatory damages for failing to provide him with medical

care for his injuries following his arrest;

(4) DISMISSES any and all other claims contained in the complaint;

(5) DIRECTS the United States Marshals Service to effect service of process on

Daniel Ingram, Jessica Ingram, Nolan E. Banks, and Jeffery McCann; and

(6) ORDERS Daniel Ingram, Jessica Ingram, Nolan E. Banks, and Jeffery McCann

to respond, as provided for in the FEDERAL RULES OF CIVIL PROCEDURE and N.D. IND.

L.R. 10.1, only to the claims for which the plaintiff has been granted leave to proceed in

this screening order.

SO ORDERED.

Date: April 9, 2013

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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