RODELL SANDERS RUDI REINHART ISHMAIL SPRAGGINS GERALD EARL TED KNOX v. THE STATE OF ILLINOIS (2001)

OPINION

These five cases were consolidated for the purpose of creating a record because they all arise out of the same incident at Menard Correctional Center (hereinafter MCC), a maximum security prison. The five cases are before the Court on five different Complaints by Claimants Rodell Sanders (98 CC 1561), Rudi Reinhart (98 CC 1868), Ishmail Spraggins (98 CC 1869), Gerald Earl (98 CC 1870) and Ted Knox (98 CC 2004).

The cases, sounding in tort, share the common allegation that the Illinois Department of Corrections (hereinafter DOC) failed to provide reasonably safe living conditions. Jurisdiction is invoked pursuant to Section 8 (d) of the Court of Claims Act. All are based upon the discharge of a shotgun by a Correctional Officer at MCC on March 21, 1996.

DEPARTMENT RULES

DOC Rule, Section 501.40, entitled Justifiable Use of Force, states, in pertinent part:

b) An employee shall be authorized to use deadly force under the following circumstances in accordance with [the Unified Code of Corrections [730 ILCS 5/3-6-4]:

1) When he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or any other person.

3) To prevent or suppress a riot, revolt, mutiny or insurrection or during a serious disturbance when there is reason to believe that a committed person poses an imminent threat of escape, death or great bodily harm to another person.

c) Prior to using deadly force:

2) Oral commands and warning shots shall be used within adult facilities, whenever time and circumstances permit. Warning Shots shall not be fired when there is apparent danger of injury to an innocent third party. 20 Ill. Adm Code, Ch. I, Subch. E, Part 501, Subpart A (1994).

The Facts

On March 21, 1996, a disturbance occurred in the South Lowers Cell House where each of the Claimants was housed. A tower guard in the cell house fired one round of birdshot from a shotgun as a warning shot. The cell house has four tiers, called galleries, with two facing one exterior wall and two facing the other exterior wall. Each gallery has 54 cells and a walkway. A guard tower overlooks the 2 and 4 galleries. The tower is in between the exterior wall and the walkways. The tower in question, tower 24, is opposite cells 422 and 423. The tower has a shot box which, is designed to contain the discharge from a warning shot. The shot box is a wooden box with a metal cone in it. The box is approximately 18 to 24 inches square. The box hangs on cables from the ceiling. The procedures for use require the Correctional Officer (hereinafter CO) in the tower to keep a shotgun in his hands constantly. When firing a warning shot, the CO is supposed to aim through the window of the tower at the box. The CO aims through the bars on the window, which are about 8 inches apart. The barrel is not supposed to go through the bars because of a concern that the weapon could be grabbed. The box is somewhere between five feet to fifteen feet from the tower window. The tower CO was equipped with a Remington 870 12-gauge shotgun, a RugerMini 14 shotgun and a 37-millimeter gas gun. The primary 12-gauge shotgun round used in the tower was a Number 8, containing 490 pellets of birdshot. According to CO Wright, the shot box contains a majority of the birdshot, but some pellets become deformed and do not move with the majority of the shot column. CO Wright described them as fliers. CO Wright stated that he could not quantify the number of fliers but he did not believe the shot box could contain all of the birdshot. He stated that the purpose was to contain a majority of the warning shot. CO Montgomery concurred in this description of the purpose and function of the box. CO Montgomery, the individual in the tower that discharged the warning shot on the day in question, stated that there was no way to know where a specific birdshot was going when the shotgun was discharged. He testified that the shot box was supposed to lower the chances of inmates being accidentally struck by pellets from a warning shot.

On March 21, at 8:30 a.m. a warning shot was fired from a shotgun because an inmate on 2 Gallery refused an order to lock up. CO Sullins described that the incident began when he was letting inmates out of their cells for their work details. An inmate named Terry James argued with CO Sullins about whether he should, be let out for work detail with Sullins maintaining that James was not on the work list. After checking, Sullins found that James was on a work detail and he let him out. James came out of his cell yelling and screaming at Sullins. CO Wright joined the discussion and the verbal abuse increased. Lt. Achenson ordered James to return to his cell and he refused. The confrontation became physical and the officers tried to handcuff James. About twelve inmates began to gather around them and Lt. Achenson radioed for the Captain. As the inmates pressed closer, CO Montgomery could not see the officers. He fired the warning shot because of the combative nature of James and his concern about the other inmates. The first shell misfired and the second round was fired at the shot box. The confrontation de-escalated after the shot. Eight inmates were hit by pellets, including the five claimants. An investigation was conducted. A Memorandum, dated June, 13, 1996, from Deputy Director Watkins of Support Services, summarized the findings of the investigation by stating that, the allegations that [CO Montgomery] violated the Department Rules regarding Use of Excessive Force and Aggravated Battery are not substantiated.

A. Rodell Sanders (1561)

Rodell Sanders was housed in cell 433 on 4 Gallery in the South Lowers Cell House on March 21, 1996. He was standing in his Cell facing the bars of the door eating cereal. He did not hear the disturbance but he did hear the shot. He felt the impact of a pellet in the center of his forehead. He grabbed his head and saw blood. He called for help. Sanders was taken to the prison hospital where his wound was cleaned and bandaged. Investigators took a photograph of Sanders and questioned him. He stated that he noticed marks on his cell walls, which he believed were made by the shotgun blast. He stated that investigators came to his cell and photographed the walls. Sanders observed the investigators picking up a shotgun shell cap on the walkway in front of his cell. He believed that the cap would have only landed there if the officer did not fire the weapon in the shot box. X-rays show multiple metallic fragments in various parts of his body, including the left side of his skull but none in his forehead. He acknowledged that he was shot in 1989 and still has fragments in his body from that shooting. Sanders stated that he suffers from recurring and severe headaches. He described the pain as throbbing. He complains that he can not get an answer to his question of whether the projectile is still in his head. He fears being shot again.

B Rudi Reinhart (1868)

Rudi Reinhart was housed in cell 225 on 2 Gallery in the South Lowers. On March 21, he was let out of his cell to go to his work assignment as a clerk for Captain Pickering. As he walked down the gallery he saw a couple officers arguing with TC, an inmate, about cuffing up. He did not observe a physical altercation nor did he hear raised voices. He walked around them and proceeded to the sergeant's cage. When he reached cell 235 or 236, he heard someone call his name. He turned around and got shot. He did not remember hearing the shot noise. The wound to Reinhart was to his left shoulder. All of the injured inmates were grouped together and waited ten to fifteen minutes before being sent to the prison hospital. At the infirmary, his wound was cleaned and dressed. He did not receive any other medical treatment. His shoulder remained sore for a week. He does not know if the pellet is still in his shoulder. His medical records indicate that the x-ray does not show any foreign bodies in his shoulder. He jumps when he hears loud noises. He was interviewed by Internal Affairs. Photographs of his wound were taken.

C. Ishmail Spraggins (1869)

On March 21, Ishmail Spraggins was eating breakfast in his cell on 4 Gallery of South Lowers when he heard a commotion. His cell was about twelve cells from the tower. He was putting his breakfast trash into a garbage bag, which hung from the bars outside his cell, when he heard a shot and was hit in the left arm. He pulled his arm back through the chuckhole in his door. He stated that the wound was hot and his arm was bleeding. He dug the pellet out of his arm. Spraggins called for help. It took an hour before he was taken to the prison hospital. He was given a shot. Photographs and x-rays were taken. He was interviewed by investigators. Spraggins stated that he has occasional numbness in his arm, but the doctors have told him there is nothing they can do for him. He testified that he is scared whenever he is around armed guards. The x-rays revealed no foreign metallic objects in left forearm. The medical records show a puncture wound and confirm that he has complained about numbness in his left arm.

D. Gerald Earl (1870)

On March 21, Gerald Earl was housed in cell 348 on 3 Gallery of the South Lowers. His work assignment included going to the sergeant's cage and getting the telephone for the purpose of taking it up to the gallery for use by the inmates. On the day in question he was supposed to take the telephone up to 4 Gallery. When he reached the first cell on the tier, he heard a loud noise and felt something hot. He ran back down to the sergeant's cage and was told he was bleeding from the face. Sergeant Smith and COs Campbell and Holton handcuffed Earl and went to retrieve the other injured inmates. They returned after ten minutes. On his way to 4 Gallery, Earl did not notice a disturbance on 2 Gallery. He did look over the rail on 4 Galley prior to hearing a boom. Earl was taken to the prison hospital. He was bleeding over his right temple near the hairline. Medical personnel cleaned his wound and took x-rays. He said that he was dizzy and scared. He complained to the doctor that he felt hotness and stinging in other areas. The pellet was left in his head and remains there today. He can feel the pellet and suffers from headaches. The medical records confirm that he has a 3 cm. metallic piece in his head. The records are not clear but they appear to reference another 3-cm. metallic body in the right humerus. Earl stated that some COs told him the officer missed the shot box.

E. Ted Knox (2004)

Ted Knox was in his cell at the time the shotgun was discharged, which was about five cells from the guard tower. He was just waking up in his bunk when he heard a big boom and felt his left forearm get hit. His arm began to bleed and he yelled. A few minutes later a Captain came by his cell. Knox was in pain.

Knox was taken to the prison hospital where several metal fragments were discovered and removed from his arm. He received Tylenol. He was given a lower bunk assignment because his left arm interfered with his ability to pull himself into the top bunk. He continues to have occasional strength and grip problems with his left arm and it occasionally goes numb.

Knox complained about being jumpy when he hears loud noises. His medical records referenced a 3-mm. metallic foreign body in his left forearm. He received medical treatment until May 1996.

Claimants Argument

Claimants argue that the undisputed evidence shows that they were injured by stray pellets from the warning shot from a shot gun and the cause was due to structural flaws in the shot box or the guard failing to hit the shot box. The State owes a duty to inmates to provide them with a safe place to live. Holt v. State (1990), 43 Ill. Ct. Cl. 195. Correctional officers may use such force as is reasonably necessary to restrain an inmate to protect all parties from injury and claimant has the burden of proving the State's agents were negligent or used excessive force to prevail. Simmons v. State (1991), 44 Ill. Ct. Cl. 304. Claimants do not dispute the State's right to fire a warning shot. Claimants also specify that CO Montgomery's decision to fire may fall within the appropriate rules. But claimants suggest that he either missed the box or the box was not designed to prevent collateral damage. Either occurrence would be a violation of their rights. Claimants point to the testimony of respondent's employees for evidence that the State knew that there was an apparent risk of persons being struck by stray projectiles, e.g. fliers. Claimants assert that a choking, or constricting, device on the barrel of the shotgun would have substantially reduced the risk to others. By failing to prevent injury to innocent third parties, respondent has violated its own use of deadly force regulations. Claimants urge the Court to find that the DOC's misconduct rises to the level of willful and wanton or gross negligence. Claimants state that there are no decisions by this Court indicating the appropriate amount of damages for gun shot wounds. Although claimants do not request a specific amount of damages. They emphasize that they suffered psychological and physical damages.

Respondent's Argument

Respondent argues that CO Montgomery was using such force as necessary to restrain inmate James and to disband the inmates that were encircling the officers attempting to handcuff James. Respondent cites Hamilton w State (1987), 40 Ill. Ct. Cl. 191, for the proposition that a prison officer, faced with an inmate disturbance, is afforded a wide range of discretion and the totality of the circumstances shall be considered to determine whether the officer's conduct can constitute negligence. Where an inmate becomes unruly, the officer may use such force as is reasonably necessary to restrain the inmate. Simmons v. State (1994), 44 Ill Ct. Cl. 304. Respondent also refers the Court to White v. State (1994), 47 Ill. Ct. Cl. 344, in support of its position that the firing of the warning shot was within the permissible discretion of the officer. CO Montgomery saw an altercation between an inmate and officers and saw a group of inmates encircling the officers. His duty was to insure the safety of the inmates and staff. He had to act quickly and used less than the maximum force that was available to him.

Decision

In Simmons v. State (1994), the claimant alleged use of excessive force by the State. 44 Ill. Ct. Cl. 304. The Court found that the officers, used such force and compulsion as was necessary to restrain claimant and to protect officers and Claimant from additional, further, or more serious injuries. Id, at 306-7. The other case cited by claimants, Holt v. State (1990), accurately summarizes the general principle that the State owes a duty to inmates to provide them with safe conditions under which to perform their assigned work, or more, broadly interpreted to include safe living conditions. 43 Ill. Ct. Cl. 195. However, the case does not address issues of the use of force and does not provide specific guidance for the issues in the case at bar. The Court in Hamilton v. State (1987), 40 Ill. Ct. Cl. 191, addressed a similar factual scenario. In that case, an officer fired a warning shot into the ceiling of the dining room because of a fight between another officer and an inmate. Claimant was not involved in the fight, however, he was struck in the face by ricocheted shotgun pellets. The allegations made by Hamilton were consistent with the allegations raised in the case at bar. The Hamilton Court found that the firing of the shotgun constituted the use of deadly force under DOC's Rules. The Court accepted the judgment of the officer in his determination that the disturbance was serious enough to warrant the firing of the warning shot. The Court stated that an officer in that situation has a wide range of discretion. Even if he exercised bad judgment, this is not necessarily exceeding the limits of his discretion, or abusing his discretion, the Court reasoned Id. at 195. The Court concluded that the officer's conduct did not support a claim for negligence.

In White v. State (1994), the Court also found that the State was not negligent when an officer fired a shotgun round of birdshot and ricochets struck White and others. 47 Ill. Ct. Cl. 344. The Court, in finding that the officer reacted properly and promptly to a potentially dangerous situation, noted that, being in prison is not in any way to be compared with being in Boy Scout camp. Id. at 347.

In the case at bar, claimants do not dispute that CO Montgomery's decision to fire the warning shot was justified. Respondent's witnesses testified that it was justified and this opinion was reached also during the official investigation by DOC. Therefore the only conclusion that this Court can reach is that CO Montgomery acted within his legal discretion.

Claimants urge the Court to find that CO Montgomery either missed the shot box or that it was improperly constructed. There is no credible evidence to support a finding that Montgomery missed the shot box. The only reference in the record to this allegation is hearsay testimony from one or more of the claimants that they heard officers or inmates say it. Those individuals are not identified and there is no corroborating evidence to support this conclusion. In addition, there are references in the Departmental Report were Montgomery is quoted as saying he aimed at the shot box. Claimants have not met their burden to show that CO Montgomery discharged the firearm in a negligent manner.

Claimants also assert that the fact respondent knew that there was a risk that third parties may be hit from a warning shot leads to the conclusion that Respondent is liable whenever such persons are hit. They claim that this violates DOC's Rules, without referencing a specific rule but apparently meaning the second sentence of Section 501.40, c) 3). That sentence states: Warning shots shall not be fired when there is apparent danger of injury to an innocent third party. Unfortunately, this is not how the case law has developed. In White and in Hamilton, the Court found that Respondent was not liable to third parties struck by ricocheting pellets whenever respondent's officers did not act improperly in discharging the firearm. There is nothing in the record to explain the meaning or purpose of the quoted sentence and the Court declines to speculate on its meaning or purpose. To do otherwise could lead to the Court to speculate that the purpose is to relieve an officer of the need to fire a warning shot in certain circumstances.

Claimant's contention that the shot box was not designed or constructed properly to contain all of the pellets is not sufficient to support a conclusion that respondent is negligent. In Hamilton, the officer fired into the ceiling and in White, the officer ultimately fired at fighting inmates. There was no evidence of the existence of a shot box in either case. Additionally, there is nothing in the record to indicate that a shot box must be provided by Respondent and nothing in the record to indicate what respondent should have done to correct any perceived flaws. One could arguably put forth that DOC's use of the shot box, with a purpose of containing a majority of the pellets, was a safeguard offered by it for the protection of third persons.

Claimants have not met their burden to prove by a preponderance of the evidence that respondent was negligent. The claims are hereby denied.

RAUCCI, C.J.