UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

CHARLES HUBBARD, )

)

Plaintiff, )

) CAUSE NO. 3:14-CV-598 JM 

vs. )

)

MR. PAYNE, et al., )

)

Defendants. )

OPINION and ORDER

Charles Hubbard, a pro se prisoner, filed an amended complaint alleging that Sgt.

Derek choked and hit him while he was having a seizure. He alleges that Nurse Derek

and Captain Payne saw this, but did not intervene to stop it even though they knew it

was wrong. “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) (quotation

marks and citations omitted). Nevertheless, pursuant to 28 U.S.C. § 1915A, the court

must review the merits of a prisoner complaint. 

“In order to state a claim under § 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). The “core

requirement “ for an excessive force claim is that the defendant “used force not in a

good-faith effort to maintain or restore discipline, but maliciously and sadistically to

cause harm.” Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir. 2009) (internal citation
omitted). “[A] mere dispute over the reasonableness of a particular use of force or the

existence of arguably superior alternatives” does not establish a basis for liability. 

Whitley v. Albers, 475 U.S. 312, 322 (1986). A bystander “can be held liable under § 1983 if

[he] (1) had reason to know that a fellow officer was using excessive force or

committing a constitutional violation, and (2) had a realistic opportunity to intervene to

prevent the act from occurring.” Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009). 

Though Hubbard’s complaint lacks many important details, it nevertheless states

a claim against Sgt. Derek for using excessive force against him in violation of the

Eighth Amendment and against Nurse Derek and Captain Payne for failing to intervene

to stop Sgt. Derek from attacking Hubbard. 

For the foregoing reasons, the court:

(1) GRANTS Charles Hubbard leave to proceed against Sgt. Derek in his

individual capacity for compensatory damages for attacking him while he was having a

seizure in violation of the Eighth Amendment;

(2) GRANTS Charles Hubbard leave to proceed against Nurse Derek and

Captain Payne in their individual capacities for compensatory damages for their failure

to intervene to stop Sgt. Derek from attacking Charles Hubbard while he was having a

seizure in violation of the Eighth Amendment;

(3) DISMISSES all other claims;

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(4) DIRECTS the clerk to transmit the summons and USM-285 for Sgt. Derek,

Nurse Derek, and Captain Payne to the United States Marshals Service along with a

copy of this order and a copy of the complaint; 

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

to effect service of process on Sgt. Derek, Nurse Derek, and Captain Payne; and

(6) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Sgt. Derek, Nurse Derek,

and Captain Payne respond, as provided for in the FEDERAL RULES OF CIVIL PROCEDURE

and N.D. IND. L.R. 10-1(b), only to the claim for which the plaintiff has been granted

leave to proceed in this screening order. 

SO ORDERED.

Date: August 13, 2014

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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