UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JERRY L. SIERS, )

)

Plaintiff, )

) CAUSE NO. 3:14-CV-2031 PS 

vs. )

)

SHAWN MCGUIRE, et al., )

)

Defendants. )

OPINION AND ORDER

Jerry Lee Siers, a pro se prisoner, filed a complaint under 42 U.S.C. § 1983. (DE 7.) 

I must review the complaint 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. 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. 

Here, Siers alleges that he was subjected to excessive force on August 7, 2013, during

an arrest by detectives from the Marion Police Department and Wabash County Sheriff

Department in Marion, Indiana. He claims that he complied with Marion Police

Department Detective Shawn McGuire’s instructions to lie down on the ground. 

Nevertheless, Detective McGuire released his K-9 and allowed the dog to maul Siers upper

thigh and groin area. As a result of the attack, Siers suffered muscle and nerve damage,
as well as the loss of his right testicle. Siers further alleges that Wabash County Sheriff

Department Detective Mike Davis was present during this time and, acting in concert with

Detective McGuire, allowed the excessive force to take place and continue. Siers seeks

compensatory and punitive damages.

Because Siers is a pretrial detainee, the Fourteenth rather than the Eighth

Amendment applies. Lewis v. Downey, 581 F.3d 467, 473-74 (7th Cir. 2009). However, the

standards that apply are functionally equivalent, and “anything that would violate the

Eighth Amendment would also violate the Fourteenth Amendment.” Id. at 475. Under

the Eighth Amendment, 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). Several factors guide the inquiry of whether an

officer’s use of force was legitimate or malicious, including the need for an application of

force, the amount of force used, and the extent of the injury suffered by the prisoner. Id. An

inmate cannot refuse to comply with a direct order from a correctional officer, and if he

does the officer is justified in using some level of force to obtain his compliance. Lewis, 581

F.3d at 473; Soto v. Dickey, 744 F.2d 1260, 1267 (7th Cir. 1984). 

Here, giving Siers the inferences to which he is entitled at this stage, he alleges a

plausible claim that Detective McGuire used more force than was necessary under the

circumstances. He alleges that he complied with Detective McGuire’s instructions to lie on

the ground, but the officer still allowed his K-9 to attack Siers, causing him significant pain

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and injuries. The complaint can be read to allege that Siers was not offering resistance

during this incident, and that he complied with the orders had he been given. Although

further factual development may show that Detective McGuire’s actions were reasonable

under the circumstances, Siers has alleged enough to proceed on this claim. 

Next, Siers brings suit against Detective Davis for failing to intervene in Detective

McGuire’s use of excessive force. “Police officers who have a realistic opportunity to step

forward and prevent a fellow officer from violating a plaintiff's right through the use of

excessive force but fail to do so” may be held liable. Miller v. Smith, 220 F.3d 491, 495 (7th

Cir.2000) (citing Yang v. Hardin, 37 F.3d 282, 285 (7th Cir.1994). This is what has become

known as a “failure to intervene” basis for a constitutional violation under the Eighth

Amendment, a principle which this circuit has long recognized. Fillmore v. Page, 358 F.3d

496 506 (7th Cir. 2004); Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.1982).

Giving Siers the inferences to which he is entitled at this stage, he alleges a plausible

claim that Detective Davis knew that Detective McGuire was engaging in excessive force,

had an opportunity to prevent Detective McGuire from using more force than was

necessary under the circumstances, and nevertheless failed to intervene. The complaint can

be read to allege that because they were acting in concert, Detective Davis allowed

Detective McGuire to use excessive force on Siers. Although further factual development

may show that Detective Davis acted reasonably under the circumstances, Siers has alleged

enough to proceed on this claim.

For these reasons, I:

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(1) GRANT the plaintiff leave to proceed against Detective Shawn McGuire in his

individual capacity for monetary damages for using excessive force against him on August

7, 2013; 

(2) GRANT the plaintiff leave to proceed against Detective Mike Davis in his

individual capacity for monetary damages for failing to intervene in Detective McGuire’s

use of excessive force on August 7, 2013; 

(3) DISMISS any and all other claims contained in the complaint;

(4) DIRECT the U.S. Marshals Service to effect service of process on Detective

Shawn McGuire and Detective Mike Davis; and

(5) ORDER that Detective Shawn McGuire and Detective Mike Davis respond, as

provided for in the FEDERAL RULES OF CIVIL PROCEDURE and N.D.IND.L.R. 10.1, only to the

claim for which the pro se plaintiff has been granted leave to proceed in this screening

order.

SO ORDERED.

ENTERED: June 15, 2015 s/ Philip P. Simon 

Philip P. Simon, Chief Judge

United States District Court

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