UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DEMAJIO JEROME ELLIS, )

)

Plaintiff, )

)

 v. ) Case No. 3:14-CV-1575 JD

)

SERGEANT MYERS, et al., )

)

Defendants. )

OPINION AND ORDER

Demajio Jerome Ellis, a pro se prisoner, filed a complaint which provides a narrative of

events which occurred at the Westville Correctional Facility on November 21 and 22, 2013. “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). Nevertheless, pursuant to 28 U.S.C. § 1915A, this court

must review the complaint and dismiss it if the action is frivolous or malicious, fails to state a claim,

or seeks monetary relief against a defendant who is immune from such relief. “In order to state a

claim under [42 U.S.C.] § 1983 a plaintiff must allege: (1) that defendants deprived him of a federal

constitutional right; and (2) that the defendants acted under color of state law.” Savory v. Lyons, 469

F.3d 667, 670 (7th Cir. 2006). 

Based on the narration provided, Ellis has stated several claims. He alleges that Sergeant

Myers, Sergeant Sexton, and Officer Backus placed him in a freezing cold cell in only his boxer

shorts from approximately noon to 3:00 p.m. on November 22, 2013. A violation of the Eighth

Amendment’s cruel and unusual punishments clause consists of two elements: (1) objectively,

whether the injury is sufficiently serious to deprive the prisoner of the minimal civilized measure
of life’s necessities, and (2) subjectively, whether the prison official’s actual state of mind was one

of “deliberate indifference” to the deprivation. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

Though the exact temperature in the room is not known, giving Ellis the benefit of the inferences

to which he is entitled at the pleading stage of this proceeding, he has plausibly alleged that it was

so cold that his placement there (even though for only three hours) was sufficiently painful to violate

the Eighth Amendment. 

Ellis alleges that when he was removed from the freezing cell at about 3:00 p.m., Sergeant

Myers and Sergeant Sexton slammed his head into a wall and struck him with their elbows and

knees. He alleges that Sergeant Myers over tightened his handcuffs and leg irons. He alleges that

Officer Backus kicked him. It is unclear what Ellis was doing and whether the defendants were

responding to his disruptive behavior. Nevertheless, even “[w]here a prison security measure is

undertaken to resolve a disturbance . . . we think the question whether the measure taken inflicted

unnecessary and wanton pain and suffering ultimately turns on whether force was applied in a good

faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of

causing harm.” Whitley v. Albers, 475 U.S. 312, 321-322 (1986) (quotation marks and citation

omitted). Here, Ellis has plausibly alleged that Sergeant Myers, Sergeant Sexton, and Officer Backus

used excessive force against him in violation of the Eighth Amendment.

Ellis alleges that after he had been secured in his cell for about 30 minutes, Nurse Lukac

questioned him about his injuries, but did not provide him any medical treatment for them. He

alleges that Nurse Lukac falsely claimed that he refused treatment. “For a medical professional to

be liable for deliberate indifference to an inmate’s medical needs, he must make a decision that

represents such a substantial departure from accepted professional judgment, practice, or standards,

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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) (quotation marks and citations omitted).

Though Ellis does not clearly describe what injuries he had or what treatment he needed, he has

plausibly alleged that Nurse Lukac lied about his refusal of medical treatment to avoid providing

him with needed medical care in violation of the Eighth Amendment. 

These are the claims on which Ellis may proceed. However that are two other defendants

listed against whom he may not proceed. The only allegation made about Nurse Moore is that she

did not ask him about his injuries. Standing alone, this is simply insufficient to state a claim against

her. The complaint gives no indication why she would have any reason to have done so. Even if she

had been in the area, he was already being seen by Nurse Lukac. “[W]here the well-pleaded facts

do not permit the court to infer more than the mere possibility of misconduct, the complaint has

alleged—but it has not shown—that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009) (quotation marks and brackets omitted). Thus, “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). As for Lt. Cain, Ellis makes no mention of his having done

(or not done) anything. There is simply no mention of him other than the inclusion of his name in

the list of defendants. Therefore both Nurse Moore and Lt. Cain will be dismissed. 

Finally, Ellis has described a number of other events in his narrative which do not state

claims and it is unclear that he was trying to do so. Rather it appears that he was merely providing

a more complete description of the events which occurred on that day. For example, he describes

various rude comments that were made to him. However, “simple verbal harassment does not

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constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny

a prisoner equal protection of the laws.” DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000). He

also describes the “trip gear” restraints as a “dog leash” which could have caused him to fall and be

injured. However, he did not fall and was not injured. “To state a claim premised on prison officials’

failure to protect him from harm, [the plaintiff] must allege that the defendants knew of and

disregarded an excessive risk to his health and safety. The question of the defendants’ culpability

is subjective, but the risk is evaluated on an objective basis – the allegedly dangerous prison

condition must deprive an inmate of the minimal civilized measure of life’s necessities.”

Christopher v. Buss, 384 F.3d 879, 882 (7th Cir. 2004) (quotation marks and citation omitted). “An

objectively sufficiently serious risk, is one that society considers so grave that to expose any

unwilling individual to it would offend contemporary standards of decency.” Christopher v. Buss,

384 F.3d 879, 882 (7th Cir. 2004) (quotation marks and citations omitted). The use of trip gear when

moving an inmate is not uncommon. Rather it is an unfortunate security precaution that does not

offend contemporary standards of decency.

Finally, Ellis seeks both monetary damages and injunctive relief. Though he will be

permitted to proceed on compensatory and punitive damages claims, his requests for injunctive relief

are not appropriate. Ellis asks that the court enjoin the defendants from working on his housing unit

and from touching his property during the pendency of this litigation. “A preliminary injunction is

an extraordinary and drastic remedy; it is never awarded as of right.” Munaf v. Geren, 553 U.S. 674,

689-690 (2008)(quotation marks and citations omitted). “A plaintiff seeking a preliminary injunction

must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm

in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest.” Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). Though Ellis has

stated a claim against four defendants, he has not demonstrated that he meets any of the

requirements for obtaining a preliminary injunction. In addition, Ellis asks that the court preclude

the Indiana Department of Correction (a non-defendant) from placing him in the intake receiving

room and to require it to audio and video tape him continuously. However, the State may confine

him in any of its prisons or housing units or rooms. Meachum v. Fano, 427 U.S. 215, 224 (1976).

Prison administrators are accorded wide-ranging deference in the adoption and execution of internal

policies and practices. Whitley v. Albers, 475 U.S. 312, 321–22 (1986). And it is not for federal

judges to micro-manage prisons. See Bruscino v. Carlson, 854 F.2d 162, 165 (7th Cir. 1988).

Therefore the injunctive relief claims will be denied and dismissed. 

For the foregoing reasons, the court: 

(1) GRANTS Demajio Jerome Ellis leave to proceed against Sergeant Myers, Sergeant

Sexton, and Officer Backus in their individual capacities for compensatory and punitive damages

for placing him in a freezing cold cell wearing only boxer shorts for three hours on November 22,

2013, in violation of the Eighth Amendment;

(2) GRANTS Demajio Jerome Ellis leave to proceed against Sergeant Myers, Sergeant

Sexton, and Officer Backus in their individual capacities for compensatory and punitive damages

for using excessive force against him around 3:00 p.m. on November 22, 2013, in violation of the

Eighth Amendment;

(3) GRANTS Demajio Jerome Ellis leave to proceed against Nurse Lukac in her individual

capacity for compensatory and punitive damages for denying him medical treatment around 3:30

p.m. on November 22, 2013, in violation of the Eighth Amendment;

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(4) DISMISSES all other claims; 

(5) DISMISSES Nurse Moore and Lt. Cain;

(6) DIRECTS the clerk to transmit the summons and USM-285 forms for Sergeant Myers,

Sergeant Sexton, Officer Backus, and Nurse Lukac to the United States Marshals Service along with

a copy of the complaint and this order; 

(7) DIRECTS the United States Marshals Service, pursuant to 28 U.S.C. § 1915(d), to effect

service of process on Sergeant Myers, Sergeant Sexton, Officer Backus, and Nurse Lukac; and 

(8) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Sergeant Myers, Sergeant Sexton,

Officer Backus, and Nurse Lukac 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.

ENTERED: June 3, 2014

 /s/ JON E. DEGUILIO 

Judge

United States District Court

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