Joseph Wilborn v. David Ealey
881 F.3d 998
| 7th Cir. | 2018Background
- On July 28, 2011, inmate Joseph Wilborn was taken to the ground by Menard Correctional Center officers after an alleged attack; he sustained bruises, a laceration, and a dislocated right shoulder.
- Wilborn testified he was compliant when he was pepper-sprayed and beaten while handcuffed; officers testified Wilborn violently resisted and they used force only to restrain him.
- After transfer to Tamms Correctional Center, nurses Hamby and Dunn evaluated Wilborn, recorded injuries, gave acetaminophen, noted a possibly dislocated shoulder, and placed him on a list to see a doctor the next day; his shoulder was reduced at an outside hospital ~24 hours after the incident.
- Wilborn sued under 42 U.S.C. § 1983 for excessive force and failure to intervene (officers and Major Rees) and for deliberate indifference to medical needs (nurses).
- The district court dismissed the claims against the Tamms nurses for failure to exhaust administrative remedies after a Pavey evidentiary hearing; it tried the remaining claims in a bench trial, granted JMOL for Rees at plaintiff’s resting, found officers more credible, and entered judgment for all defendants.
- The Seventh Circuit affirmed: it upheld dismissal for failure to exhaust, credited the officers’ testimony (no Eighth Amendment violation), affirmed JMOL for Rees, and found no abuse of discretion in the court’s handling of recruitment of volunteer counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of administrative remedies against nurses Hamby and Dunn | Wilborn says he timely submitted his grievance (or had good cause for delay) and thus exhausted remedies | Nurses argue Wilborn failed to submit to a grievance officer within 60 days as required and did not show sufficient good cause for the 41-day delay | Affirmed dismissal: Wilborn failed to exhaust; district court’s factual findings re: missed deadline and lack of good cause not clearly erroneous |
| Eighth Amendment excessive force by officers Johnson, Bennett, Lloyd, Ealey | Wilborn contends officers used force maliciously and beat him after restraint, causing facial injuries | Officers say Wilborn was the initial aggressor, violently resisted, and force used was to restrain him; facial injuries consistent with wrestling on ground | Affirmed for defendants: district court credited officers; force was not malicious/sadistic but to restrain; findings not clearly erroneous |
| Failure to intervene claim against Major Rees | Wilborn asserts Rees observed or should have observed unlawful force and failed to intervene | Rees contends he arrived after restraint and ordered medical attention; no evidence he witnessed excessive force | JMOL for Rees affirmed: no underlying unlawful force found; even procedural citation error (Rule 50 vs 52) not prejudicial |
| Recruitment of volunteer counsel under 28 U.S.C. § 1915(e)(1) | Wilborn argues the court abused discretion by not continuing to seek replacement volunteer after one withdrew | Court had contacted 400+ attorneys over 18 months, renewed search multiple times, offered continuance, and Wilborn declined postponement | No abuse of discretion: court’s substantial efforts were sufficient; no constitutional right to civil counsel and no indefinite recruitment duty |
Key Cases Cited
- Hudson v. McMillian, 503 U.S. 1 (Eighth Amendment excessive force standard)
- Whitley v. Albers, 475 U.S. 312 (force permissible to restore order; malicious/sadistic standard)
- Pavey v. Conley, 544 F.3d 739 (Seventh Circuit) (procedure for evidentiary hearing on exhaustion)
- Pavey v. Conley, 663 F.3d 899 (Seventh Circuit) (clarifying standard of review for Pavey hearings)
- Dole v. Chandler, 438 F.3d 804 (Seventh Circuit) (strict exhaustion requirement)
- Owens v. Hinsley, 635 F.3d 950 (Seventh Circuit) (Illinois grievance requires submission to grievance officer)
- Pyles v. Nwaobasi, 829 F.3d 860 (Seventh Circuit) (good-cause analysis for missed grievance deadlines)
- Hurst v. Hantke, 634 F.3d 409 (Seventh Circuit) (physical incapacity as potential good cause)
- Anderson v. City of Bessemer City, 470 U.S. 564 (standard for overturning factual findings/credibility)
- Ortiz v. Martinez, 789 F.3d 722 (Seventh Circuit) (when credited testimony is facially implausible)
- Yang v. Hardin, 37 F.3d 282 (Seventh Circuit) (failure-to-intervene liability)
- Mallard v. United States Dist. Court for the Southern Dist. of Iowa, 490 U.S. 296 (volunteer counsel in civil cases and limits on appointment)
- Pruitt v. Mote, 503 F.3d 647 (Seventh Circuit en banc) (factors for recruiting counsel)
- Dupree v. Hardy, 859 F.3d 458 (Seventh Circuit) (no civil right to appointed counsel)
- Curtis v. Timberlake, 436 F.3d 709 (Seventh Circuit) (alternative grievance procedures exception)
- United States v. Johnson, 437 F.3d 665 (Seventh Circuit) (credibility not clear error when testimony not physically impossible)