ELY v. ILLINOIS DEPARTMENT OF CORRECTIONS (2007)

OPINION

This claim is before the Court upon a recommendation from Commissioner LaGuina Clay-Clark following an evidentiary hearing.

Claimant, an inmate in the Illinois Department of Corrections (“IDOC”) is seeking compensation in the amount of $100,000 for personal injury to the face, head and right shoulder resulting from stray gunshot pellets due to the alleged negligence of an IDOC guard. On October 7, 2002, Claimant filed a complaint with the Court of Claims.

FACTS

An evidentiary hearing was conducted before the designated commissioner on December 8, 2004. Entered into evidence were Claimant's exhibits, including medical records and the State's Departmental Report, which includes results of an internal investigation. Testifying on behalf of the State were correctional officer William Brown and Partha S. Ghosh, M.D. Claimant testified on his own behalf.

On or about March 30, 2002, at approximately 5:00 p.m. Claimant was released from his cell in order to go to the dining room. Claimant testified that while proceeding along the gallery towards a fire escape, he heard an IDOC officer yell, “Let it ride”, and the next thing I know I was shot. Claimant explained that he was hit nine times by gunfire in the face, shoulder, chest and leg. The record indicates that an officer fired his weapon as a warning to halt a fight between and inmate and officer two galleries below. Claimant said that after being struck he fell to the ground where he remained bleeding for about five or ten minutes before an officer arrived to assist. He was taken to the health care unit within the facility. The medical staff treated his face, chest and leg, and later an x-ray revealed that two pellets remained in his right shoulder. Claimant believes that one pellet also remains above his eye. Claimant explained that a few days after the incident he noticed a piece of pellet “sticking” from his head which was removed by the doctor. Claimant said that he was given a 30-day supply of Tylenol for pain.

Claimant filed a grievance on May 6, 2002 seeking $100,000 and the removal of the pellets, but no action was recommended by the institution. Claimant then sent his grievance to Springfield and Springfield referred Claimant's grievance to a doctor. The doctor's recommendation stated that most specialists do not recommend exploring the body to remove fragments from gunshot wounds' so the pellets were not removed. Claimant complained that he still has pain from the pellets and that he is unable to lift weights as effectively as he had done before the fragments were present in his shoulder. Claimant explained that he also has headaches but does not complain because he is required to pay $2.00 each time he goes to sick call and he cannot afford it. Claimant further testified that nine permanent scars are left on his body as a result of the pellets.

Lieutenant William Brown, and officer with IDOC testified that he was four levels down and one unit over from where the weapon was fired. He explained that when he heard the gunfire he immediately went to assist. When he arrived, Brown observed an inmate and an officer on the floor scuffling as the officer attempted to put handcuffs on the inmate. According to Brown, another officer was helping with the scuffle and three additional officers were present. Brown testified that he helped get the inmate cuffed and stated that he felt that the warning shot was justified because an officer was having a physical altercation with an inmate. Brown also explained that warning shots are to be fired in the air or into a shot box. He described that a shot box is “a box they shoot into to prevent ricochets from all the pellets going everywhere.”

Dr. Partha S. Ghosh, a medical director for IDOC, also testified for the State. Ghosh stated that x-rays of Claimant's head, chest and shoulder revealed that two pellets were in Claimant's right shoulder only and none were revealed near his eye. Ghosh explained that most physicians will not recommend removal of pellets unless the pellets are close to a vital structure or if the pellets cause any functional disturbance. When requested by the Court, Ghosh made a visual examination of Claimant and testified that Claimant has a small wound on the forehead, a small wound a few millimeters in the eye area, a scar on his right shoulder one and a half centimeters wide and a half inch long, and a scar on the chest. Ghosh suggested that the scar on the chest was pre-existing.

Included within the departmental report submitted by Respondent which was completed by IDOC and offered as prima facie evidence of the facts contained therein pursuant to Section 790 140 of the Rules of the Court of Claims (74 Ill. Adm. Code 790.140) Menard County Health Department v. State of Illinois (1989) 41 Ill. Ct. Cl. 200 201, are the results of an internal investigation conducted by IDOC. The investigation concluded that the based on eye witness accounts and the inmate's own admission, the inmate committed a criminal violation of aggravated battery and created a dangerous disturbance when the inmate started a fight with the officer. Even though the investigation discussed the injuries of Claimant and other inmates as a result of the warning shots the investigation does not address the issue of negligence when the shot was fired. The investigation consists of interviews of inmates, who were witnesses as well as interviews and incident reports from officers who were also present. Even though the various versions of the incident differ slightly from one account to the next, the overwhelming majority of the witnesses described an officer and an inmate falling down a flight of stairs while fighting, and many of the inmates stated that they heard an officer yell “Let it ride” before the officer fired the warning shot.

Officer Carter, who fired the shot, was away on military leave and therefore unavailable for this hearing. However, Carter's interview was included within the departmental report and in pertinent part states:

Johnson was trying to handcuff the inmate, and the inmate resisted being cuffed. During this altercation, the inmate punched Lt. Johnson in the head with his fist. There was a large number of inmates in the vicinity of Lieutenant Johnson. So Carter fired a warning shot at the ceiling to disperse the inmates and to protect Lt. Johnson. There is no shot box in the area where they were. Staff responded to Lt. Johnson, and no more shots were fired.

Carter's report states in pertinent part:

This correctional officer then chambered a round in the shotgun with weapon pointing up while inmate was still wrestling with Lt. Johnson.

Claimant argues that the officer acted negligently when he fired the warning shot because at the time the shotgun was fired the inmate was already secured and the officer's life was not in danger. Claimant contends that the officer should have used his own judgment and should not have shot just because another officer instructed him to do so by yelling “let it ride”. Additionally, Claimant contends that “let it ride” was not proper warning. Next, Claimant argues that the officer shot the weapon from hip-level and as a result the pellets hit a low beam causing it to ricochet and strike him. Lastly, Claimant argues that he has three pellets left in his body and not two as the doctor testified. Conversely, Respondent argues that there is nothing in the record to establish that the inmate was secure when the shot was fired. Next, Respondent contends that warning shot was reasonable and not negligent. It contends that Claimant received proper medical care and denies any liability.

POST TRIAL

Respondent was ordered to produce within 28 days photographs of Claimant depicting injuries from the pellets, photographs of the actual pellet that was removed from Claimant's forehead on or about April 8, 2002, and copies of Dr. Elyea's medical report that was referenced in the Administrative Review Board's report. Claimant was ordered to produce within 28 days copies of Dr. Smith's medical report, and both parties were granted leave to produce any relevant case law within 30 days. Both parties provided case law, Claimant submitted medical reports. No pictures were produced by Respondent nor was Dr. Elyea's medical report.

LEGAL ANALYSIS

A prison officer faced with an inmate disturbance is afforded a wide range of discretion as to the force which may be used, and the total circumstances are to be considered in determining whether an officer's conduct was neglect, Berry v. State (2000) 52 Ill. Ct. Cl. 117. Accordingly the Court recognizes the necessity for wide range of discretion, Hamilton v. State (1987) 40 Ill. Ct. Cl. 191, because when a fight breaks out the State owes a duty to the general population to restore order as quickly as possible to prevent the unwanted attacks of inmates regardless of other inmates White v. State (1994) 47 Ill. Ct. Cl. 344. The State will not be held liable to third parties struck by ricocheting pellets whenever officers did not act improperly in discharging the firearm Sanders v. State (2001) 54 Ill. Ct. Cl. 390 397. In the case at the bar the controlling issue is whether or not the guard acted negligently when he discharged his weapon.

In Berry a fight broke out among three inmates while in the chow line. One of the inmates had a blade. Attempts were made to separate the fighters and an officer radioed for help. Verbal warnings were given. Officers were attempting to handcuff the combatants when a warning shot was fired. Berry, who was forty feet away, was struck in the upper portion of his scalp from a pellet from the warning shots. The fragment was removed and claimant received eight stitches. Even though this Court found the Respondent's actions reasonable under the circumstances, Berry was awarded $3,000 for pain and suffering. The court held that the conclusion of the IDOC's internal investigation report was determinative of the issue of negligence and imputed it to the State because the report was neither unrebutted nor explained. Id at 124

In Hamilton no negligence was found when claimant's nose was struck by ricochet after a warning shot was fired into the ceiling just five seconds after the guard observed the fight. This Court held that notwithstanding the fact that the officer may have been hasty in deciding to fire, the officer has wide range of discretion. Even if he exercised bad judgment this is not necessarily exceeding the limits of his discretion or abusing his discretion. However hasty the officer may have been in firing the warning shot his testimony makes clear that he himself thought that it was a necessary action to take. The claim was denied Id at 195.

In White Claimant was denied his claim for negligence when a tower guard fired a warning shot after an altercation between two inmates and a correctional officer ensued. The officer fired a warning shot into the ceiling, which was ignored by the combatants. The officer then fired a shot on the floor near the inmate. White was struck by pellets from a birdshot that ricocheted off the floor. White sustained injuries to the back and groin area and demanded $20,000. This Court declined to find liability holding that the officer's actions were reasonable under the circumstances and that inmates have a reasonable right to personal safety Id at 347.

In Sanders inmates were injured by stray pellets after an officer fired a warning shot into a shot box. The inmates argued that the officer shot the weapon in a negligent manner or either missed the shot box and that their injuries were caused by structural flaws of the shot box or either by the officer missing the shot box all together. This Court denied their claims because there was nothing in the record to indicate that the State must provide a shot box or even correct flaws in the shot box. Sanders also held that the State would not be held for third party injuries from ricocheting pellets if the Respondent did not act improperly.

In the case at the bar, after an examination of the entire record, we find that Respondent did not act negligently when he discharged his weapon. It is undisputed that a fight occurred between an officer and an inmate. It is also undisputed that many inmates had been released from their cells at that time. Most witnesses reported seeing the inmate and officer physically fighting and tumbling downstairs. The rumble created an undeniably dangerous environment within the facility. Claimant asserts that the inmate was cuffed at the time that the shot was fired, but his statement is not corroborated by any of the witnesses nor anywhere else in the record. Claimant also argues that the officer should have used his own judgment when shooting the weapon. Notwithstanding that Claimant was not inside of the officer's head and therefore was in no position to determine whether Carter used his own judgment or not, the officer expressed that his actions were necessary in order to restore and maintain safety and therefore used his own discretion. Claimant also argues that Respondent was negligent by failing to give proper warning before shooting and that the officer shot the weapon from hip-level and that is why the pellets ricocheted and hit him. There was neither expert testimony nor evidence given to support Claimant's ricochet theory and the Court is unable to speculate otherwise. Additionally, even though the internal investigation acknowledged that inmates were struck by pellets the report was not determinative of the issue of negligence which can be imputed onto the State and nor can this court impugn Respondent with such negligence. Based on the totality of the circumstances, as well as our holdings in Berry, Hamilton, White and Sanders we find the Respondent's actions were reasonable and find no negligence on the part of the State.

IT IS HEREBY ORDERED that this claim be dismissed.

ORDER

THIS MATTER COMING TO BE HEARD on Claimant's Motion Rehearing or New Trial, this Court being full advised on the premises,

As required by our Rule 790 220 (74 Ill. Adm. Code790 220), a Motion for Rehearing must present, “points supposed to have been overlooked or misapprehended by the Court with authorities and suggestions concisely stated in support of the points”. After reviewing Claimant's Motion, it is the Court's opinion that Claimant has failed to satisfy this Rule.

THEREFORE, IT IS HEREBY ORDERED that Claimant's Motion for Rehearing is hereby denied.

STEFFEN, J.

Steffen, J.