UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

CHARLES A. BENSON, )

)

Plaintiff, )

)

v. ) Case No. 1:16-CV-362

)

ALLEN COUNTY JAIL, et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court for ruling on three pending motions filed by the Plaintiff,

Charles Benson. Benson filed a Motion for Judgment on the Pleadings on July 12, 2018 (ECF

57), to which the Defendants, Allen County Confinement Officers Jacob Myers and Richard

Wacasey, filed a response in opposition on July 26 (ECF 59). On July 30 Benson filed a Verified

Motion to Appoint Counsel (ECF 60) and on August 2 he filed a Motion for Oral Argument for

Judgment on the Pleadings (ECF 61). The Defendants elected not to file responses to either of

those motions. For the reasons explained below, Benson’s Motion for Judgment on the Pleadings

is DENIED; his Motion to Appoint Counsel is DENIED; and his Motion for Oral Argument is

DENIED.

STANDARD OF REVIEW 

Subsection (c) of Rule 12 provides that “[a]fter the pleadings are closed–but early enough

not to delay trial–a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). A

motion brought pursuant to Rule 12(c) is governed by the same standard that applies to a motion

to dismiss under Rule 12(b)(6). Neely v. Facility Concepts, Inc., 274 F.Supp.3d 851, 853-54

(S.D. Ind. 2017), amended in part, 2017 WL 2378283 (S.D. Ind. June 1, 2017) (citing United
States v. Wood, 925 F.2d 1580, 1581 (7th Cir. 1991)). “The Court should ‘take all well-pleaded

allegations in the plaintiffs’ pleadings to be true, and [should] view the facts and inferences to be

drawn from those allegations in the light most favorable to the plaintiffs.’” Id. (quoting Republic

Steel Corp. v. Pennsylvania Eng’g Corp., 785 F.2d 174, 177 n. 2 (7th Cir. 1986)). However, “a

court is ‘not bound to accept as true a legal conclusion couched as a factual allegation.’” Id.

(quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (U.S. 2007)). “The documents a court may

consider under Rule 12(c) include the complaint, the answer, and any written exhibits attached as

exhibits [to either].” Id., (quoting N. Indiana Gun & Outdoor Shows, Inc. 163 F.3d 449, at 452

(7th Cir. 1998)). Most importantly, especially in the present case, “[a] motion for judgment on

the pleadings may be granted only if the moving party clearly establishes that no material issue

of fact remains to be resolved and that [the moving party] is entitled to judgment as a matter of

law.” Nat’l Fid. Life Ins. Co. v. Karaganis, 811 F.2d 357, 358 (7th Cir. 1987) (citing Flora v.

Home Fed. Savings & Loan Ass’n, 685 F.2d 209, 211 (7th Cir. 1982)) (italics added).

DISCUSSION

Charles Benson filed this lawsuit on June 27, 2016. Complaint (ECF 1). He named as

defendants the Allen County Jail, Allen County Sheriff David Gladieux, and several Jail

confinement officers, including Defendants Jacob Myers and Richard Wacasey. Id. Benson also

filed a Motion for Leave to Proceed In Forma Pauperis on November 23, 2016 (ECF 4), which

the Court granted on December 7, 2016 (ECF 5). The case had a somewhat circuitous procedural

history from that point until August 9, 2017, when Benson filed the Amended Complaint that is

now the controlling complaint in this case. Prisoner Complaint Under 42 U.S.C. § 1983

(“Amended Complaint”) (ECF 19). Because Benson was incarcerated at the time he filed this

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lawsuit, the Court reviewed his Amended Complaint as required by 28 U.S.C. § 1915A. The

Court entered an Opinion and Order on September 25, 2017, granting Benson “leave to proceed

against Allen County Jail Officers Meyers and Wacasey in their individual capacities for

compensatory and punitive damages for using excessive force against him on May 13, 2016, in

violation of the Fourteenth Amendment,” and dismissing all other claims and all other

defendants. Opinion and Order (ECF 21). 

Benson alleges that on that date Myers and Wacasey used excessive force against him

during an incident at the Allen County Jail. Amended Complaint, pp. 3, 8. The operative facts

about that incident are mostly undisputed. Jail officers believed that Benson, who was a pretrial

detainee at the Jail on May 13, 2016, might be in possession of a dangerous object–a piece of a

broken light fixture–that he could use to harm himself or others. A team of confinement officers

went to Benson’s cell to conduct a “cell extraction,” removing him from his cell, searching it,

conducting a strip search of Benson in another room, and returning him to his cell. No

contraband was found on Benson or in his cell. When officers went to Benson’s cell they ordered

him to face the back wall of his cell with his hands up. The officers entered the cell and Myers,

who was holding a riot shield, used it to push Benson against the wall while Wacasey placed him

in handcuffs. When the two officers did this, Benson alleges that it reaggravated his apparently

previously broken nose. Benson describes the incident as follows:

[Officer] Myers had the riot shield and pressed it up against my back, pinning me

to the wall, which caused me to hit my broken nose up against the barred window

while [Wacasey] held my head causing extreme pain. . . . Myers had the riot

shield, came in and pressed it up against my back pressing me up against the wall

of my cell with my face up against cell barred windows hitting my broken nose on

it while [Wacasey] pressed the back of my head on the bars.

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Id. In his motion for judgment, Benson argues as follows:

The Defendants may argue that the force they applied did not amount to excessive

force due to it did not result in serious injury, Benson will disagree in [light] of

caselaw. Also Benson was injured by Defendants by the force applied which

reiterated his recently or recent previous injury that cause extreme pain all over

again. “As the Supreme Court has said, pain, not injury, is the barometer by which

we measure claims of excessive force.”

Motion for Judgment on the Pleadings, p. 5 (quoting Lewis v. Downey, 581 F.3d 467, 475 (7th

Cir. 2009)). In short, Benson argues that since the Defendants do not deny that the incident

occurred, or that they pinned him against the wall prior to removing him from his cell, or that he

was compliant at all times, and because he suffered “extreme pain” as a result of the force used

by Myers and Wacasey, he is ipso facto entitled to judgment as a matter of law. He believes this

to be so because he was a pretrial detainee at the time of the incident and therefore he was

“protected under the Fourteenth Amendment of any and all punishment by the state no matter

how much, how less, how big, or how small, the amount of force applied, Benson shall be free of

all punishment period.” Id., p. 4. Benson further alleges that the actions of Myers and Wacasey

were deliberate and that they were motivated to harm him because he was detained on a charge of

attempted murder of a police officer. Id., p. 6. Benson insists that this “utterly and without a

doubt shows and or prove that the Defendants’ motive was ill-willed, malicious, wicked,

deliberately, sadistically and in retaliation.” Id.

Defendants Myers and Wacasey filed an Answer to the Amended Complaint, denying the

allegations of excessive force and asserting several affirmative defenses. Answer to Complaint

(ECF 28). For the most part they do not dispute Benson’s version of the incident, but they “deny

that Officer Wacasey, Officer Myers or any other member of the Allen County Sheriff’s

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Department used excessive force against him at any time as alleged in the Complaint. . . . The

Defendants’ use of force was made in a good faith effort to maintain and restore discipline in the

Allen County Jail. The Defendants expressly deny that any use of force was malicious or used

sadistically to cause harm to the Plaintiff.” Answer, p. 1. 

I. Motion for judgment on the pleadings.

Benson believes that he is entitled to judgment under Rule 12(c) because the allegations

in his Amended Complaint “utterly and unequivocally state[] a claim which relief shall be

granted upon the Plaintiff[.]” Motion for Judgment on the Pleadings, p. 1. Myers and Wacasey

argue in their response in opposition that the motion “should be denied as a plain reading of the

Plaintiff’s Complaint and the Defendants’ Answer reveals that there are issues of material fact

precluding the entry of judgment.” Brief in Response, p. 1. The Defendants state as follows:

In the present case, Benson moves for summary judgment on the pleadings and

essentially reasserts the allegations previously set forth in his Complaint. Those

allegations were expressly denied by Officer Wacasey and Officer Myers in their

Answer to the Plaintiff’s Complaint, wherein they also asserted numerous

affirmative defenses. Given the denial of the allegations the Plaintiff relies upon,

the pleadings before the Court do not support the Plaintiff’s request for an entry of

judgment.

Id., p. 3. 

In their brief in opposition to Benson’s motion, Myers and Wacasey cite and discuss a

Seventh Circuit opinion they say “addressed an essentially identical issue[.]” Id. (citing

Longstreet v. Reiman, 70 F.3d 117 (7th Cir. 1995)). In Longstreet, the plaintiff was an inmate

who filed a pro se complaint under § 1983 seeking compensatory and punitive damages from the

defendant, a prison correctional officer whom Longstreet alleged “inflicted cruel and unusual

punishment in violation of the Eighth and Fourteenth Amendments by slamming Longstreet into

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walls and using excessive force.” Id. The defendants denied the allegations and the district court

denied the plaintiff’s motion, explaining as follows:

In his Answer to Longstreet’s complaint, Reiman denied all the material factual

allegations of Longstreet’s complaint–including the allegation that Reiman used

excessive force against Longstreet by shoving him against the walls. Longstreet

argues that such a comprehensive denial was tantamount to a lie and entitled him

to judgment on the pleadings under Fed.R.Civ.P. 12(c). Longstreet misapprehends

the Rule. A motion for judgment on the pleadings may be granted only if the

moving party clearly establishes that no material issue of fact remains to be

resolved.

Longstreet, 70 F.3d 117 (citing Rule 12(c) and Karaganis, 811 F.2d at 358). See also, Vann v.

Inst. of Nuclear Power Operations, Inc., 2010 WL 11601718, at *3 (N.D. Ga. July 15, 2010)

(denying plaintiff’s motion for judgment on the pleadings when plaintiff had not established that

no material issue of fact remained to be resolved and that it was entitled to judgment as a matter

of law) (citing Indianapolis Life Ins. Co. v. Lucky Stores, Inc., 1991 WL 95038, at *1 (N.D. Ill.

May 29, 1991)). The situation in the present case mirrors that of Longstreet and the outcome is

the same. Benson believes the undisputed facts prove his case, but he is mistaken. What they

prove is that Myers and Wacasey used some amount of physical force against Benson during the

cell extraction and that he suffered pain when they did so. Given that he was protected at the time

by the Fourteenth Amendment, which he believes protects him from any sort of “punishment” no

matter “how big, or how small,” Benson believes that he proven his case and is entitled to

judgment and damages. He insists that “[t]here is no doubt that Benson’s complaint did not fail

to state claim nor did his complaint lack placing Defendants on a sufficient notice.” Motion for

Judgment, p. 3. But the Court already determined that his Amended Complaint was sufficient to

state a claim against Myers and Wacasey, and allowed him to pursue that claim. Opinion and

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Order (ECF 21). What Benson fails to comprehend is the difference between stating a viable

claim and proving it. No matter how “utterly and unequivocally” he believes the facts support his

claim, the determinative fact issue–whether the force used by Myers and Wacasey against

Benson on May 13, 2016, rose to the level of excessive force–is unresolved and can only be

determined by a jury. (The same is true as to damages. If Benson succeeds in convincing a jury

that the Defendants’ use of force was objectively unreasonable under the circumstances, he must

then present evidence as to his damages, which will also be determined by the jury.) In short,

there are material factual disputes in this case, including as to the ultimate issue, that remain

unresolved and Benson’s motion for judgment on the pleadings must be denied.

II. Motion for oral argument.

Benson moves the Court to set a hearing on his motion for judgment on the pleadings

because he “was unaware that his motion for Judgment would or could be construed as a motion

for summary judgment[]” and, if this Court did construe it as such, he wants an “opportunity to

present all the materials that [are] pertinent to that motion[.]” Motion for Oral Argument (ECF

61), pp. 1-2. Benson is correct that under some circumstances a court can convert a motion for

judgment on the pleadings to a one for summary judgment under Rule 56. See Jones v. State

Wide Aluminum, Inc., 246 F.Supp.2d 1018, 1027 (N.D. Ind. 2003). But the Court analyzed

Benson’s motion for judgment on the pleadings under the proper standard. To reiterate, “[a]

motion for judgment on the pleadings under Rule 12(c) is subject to the same standard of review

as a motion to dismiss under Rule 12(b)(6).” Neurology & Pain Mgmt. Assocs., P.C. v. Bunin,

2018 WL 3830059, at *1 (N.D. Ind. Aug. 13, 2018) (citing Gill v. City of Milwaukee, 850 F.3d

335, 339 (7th Cir. 2017)).) It is not necessary to convert Benson’s motion to one for summary

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judgment since the Amended Complaint (and all documents Benson attached), the Defendants’

Answer, and the parties’ briefs are the only pleadings the Court needs to review to rule on the

motion. As the Court explained above, Benson’s Amended Complaint and the Defendants’

Answer reveal on their face the existence of unresolved material fact issues. Benson will have an

opportunity to present any evidence, including of course his own testimony, to support his

allegations at the summary judgment stage or at trial. At this juncture, however, oral argument is

unnecessary and would be fruitless. For these reasons, Benson’s motion for hearing or oral

argument (ECF 61) is denied.

III. Motion for appointment of counsel.

Benson moves the Court to appoint an attorney to represent him pro bono. Motion for

Appointment of Counsel (ECF 60). He contends that he is unable to access a prison law library

regularly enough to pursue this case on his own and needs an attorney to assist him. Id. Benson

attached to his motion ten letters he wrote to attorneys seeking their representation, along with

letters from most of those attorneys wherein they state that they cannot represent him in this case.

Id., Exhibits 2-17. Benson also states that his financial condition has not changed since he was

granted in forma pauperis status and so he is still indigent and unable to hire a lawyer to

represent him. Id., p. 2.

It is well established that “there is no constitutional or statutory right to court-appointed

counsel in federal civil litigation . . .” Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007).

However, in some circumstances, the Court may ask an attorney to volunteer to

represent indigent parties. As the appellate court explained:

When confronted with a request under § 1915(e)(1) for pro bono counsel, the

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district court is to make the following inquiries: (1) has the indigent plaintiff made

a reasonable attempt to obtain counsel or been effectively precluded from doing

so; and if so, (2) given the difficulty of the case, does the plaintiff appear

competent to litigate it himself?

Pruitt, 503 F.3d at 654. 

Benson moved the Court once before to appoint counsel. Motion for Court Appointed

Counsel, May 7, 2018 (ECF 51). Magistrate Judge Collins, to whom this case is on partial

referral, denied that motion on May 10, 2018. Order (ECF 52). Judge Collins denied the motion

without prejudice, explaining in her order as follows:

[T]he motion will be denied with leave to refile after Benson has [contacted] ten

attorneys along with a letter requesting that they represent him. . . . After waiting a

reasonable length of time for responses, if he then asks the Court to attempt to

recruit a lawyer to represent him for free, he must attach whatever responses he

has received. In addition, he needs to explain why he believes this case is difficult

and why he is not competent to litigate it himself. 

Id. pp. 1-2. Benson followed Judge Collins’ instructions and filed his renewed motion with the

appropriate documents attached. The Court concludes, however, that the issues in this case–both

factual and legal–are straightforward and that Benson is capable of pursuing the case pro se. As

the Court stated above, most of the relevant underlying facts giving rise to Benson’s claims are

undisputed and the issues already clearly delineated (i.e., was the amount of physical force Myers

and Wacasey used against Benson objectively unreasonable under the circumstances and, if so,

what amount of damages is he entitled to recover?). 

The Court will revisit the matter of appointing counsel should circumstances warrant

doing so, especially if the case goes to trial. But at this juncture there is no reason to do so and

Benson will have to continue pro se. Benson, like all pro se prisoner litigants, is hampered by

limitations and restrictions as a result of his incarceration that make it difficult for him to litigate

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a suit in federal court. The Court is mindful of Benson’s circumstances and he will be afforded

ample opportunity to present whatever relevant and admissible evidence or argument he has, but

he does not need an attorney to assist him at this time.

CONCLUSION

For the reasons discussed above, Plaintiff Charles Benson’s Motion for Judgment on the

Pleadings (ECF 57) is DENIED; his Motion to Appoint Counsel (ECF 60) is DENIED; and his

Motion for Oral Argument (ECF 61) is DENIED.

Date: September 5, 2018.

 /s/ William C. Lee 

William C. Lee, Judge

U.S. District Court

Northern District of Indiana

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