UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DEMAJIO JEROME ELLIS, )

)

Plaintiff, )

) CAUSE NO. 3:16-CV-620 RL 

vs. )

)

SERGEANT PRYOR, et al., )

)

Defendants. )

OPINION AND ORDER

Demajio Jerome Ellis, a pro se prisoner, filed an amended

complaint under 42 U.S.C. § 1983. (DE 9.) The court 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. Thus, the 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). Nevertheless,

the court must bear in mind that “a pro se complaint, however

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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). 

Ellis is inmate at the Westville Correctional Facility

(“Westville”). He complains about events that occurred there on

June 10, 2016. He states that he placed both of his hands out of

his cuffport. Sergeant Pryor came to see why Ellis had his hands

outside of his cuffport. Because Pryor and Ellis had problems in

the past, the conversation quickly turned into an argument.

Angered, Sergeant Pryor instructed Ms. Flakes to get a “strong”

version of pepper spray. Sergeant Pryor sprayed into Ellis’s cell

for 4-6 seconds simply to cause harm. Then, without warning or

reason, Sergeant Pryor deployed his taser on Ellis. Ellis alleges

that Sergeant Pryor used excessive force and Ms. Flakes allowed him

to do so.

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)

(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.

Here, though the amended complaint is light on detail, giving

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Ellis the inferences to which he is entitled at this stage, he

alleges a plausible claim that Sergeant Pryor used force

maliciously and sadistically to cause him harm. Although further

factual development may show that Sergeant Pryor’s actions were

reasonable under the circumstances, Ellis has alleged enough to

proceed on this claim. 

Next, Ellis brings suit against Ms. Flakes for failing to

intervene in Sergeant Pryor’s use of excessive force. State actors

“who have a realistic opportunity to step forward and prevent a

fellow [state actor] 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 Ellis the inferences to which he is entitled at this

stage, he alleges a plausible claim that Ms. Flakes knew Sergeant

Pryor was engaging in excessive force, had an opportunity to

prevent him from using more force than was necessary under the

circumstances, and nevertheless failed to intervene. The amended

complaint can be read to allege that because they were acting in

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concert, Ms. Flakes allowed Sergeant Pryor to use excessive force

on Ellis. Although further factual development may show that Ms.

Flakes acted reasonably under the circumstances, Ellis has alleged

enough to proceed on this claim.

For these reasons, the court:

(1) GRANTS the plaintiff leave to proceed against Sergeant

Pryor in his individual capacity for monetary damages for using

excessive force against him on June 10, 2016; 

(2) GRANTS the plaintiff leave to proceed against Ms. Flakes

in her individual capacity for monetary damages for failing to

intervene in Sergeant Pryor’s use of excessive force on June 10,

2016; 

(3) DISMISSES any and all other claims contained in the

complaint;

(4) DIRECTS the clerk and the United States Marshals Service

to issue and serve process on Sergeant Pryor and Ms. Flakes with a

copy of this order and the amended complaint as required by 28

U.S.C. § 1915(d); and

(5) ORDERS that Sergeant Pryor and Ms. Flakes 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.

DATED: February 7, 2017 /s/RUDY LOZANO, Judge 

United States District Court

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