Armstrong v. Fishel et al
Filing
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MERIT REVIEW OPINION: The Clerk is directed to attempt service on Defendants pursuant to the standard procedures. Plaintiff's Motion for the Appointment of Counsel 5 is DENIED. Plaintiff's First Amendment claim is dismissed for failing to state a cause of action upon which relief can be granted. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 3/31/2014. (MJ, ilcd)
E-FILED
Monday, 31 March, 2014 09:29:39 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DEMETRIUS ARMSTRONG,
Plaintiff,
v.
LT. FISHEL, M. MOUNTAIN, and
JOHN DOE,
Defendants.
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) No.: 14-1015-SEM
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MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court for a merit review, pursuant to
28 U.S.C. § 1915A, of Plaintiff Demetrius Armstrong’s claims and
for consideration of his motion for appointment of counsel.
I.
MERIT REVIEW UNDER 28 U.S.C. § 1915(A)
Under 28 U.S.C. § 1915(e)(2) and § 1915A, the Court is
required to carefully screen a complaint filed by a plaintiff who
seeks to proceed in forma pauperis. The Court must dismiss a
complaint, or a portion thereof, if the plaintiff has raised claims that
are legally “frivolous or malicious,” that fails to state a claim upon
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which relief may be granted, or that seeks monetary relief from a
defendant who is immune from such relief. Id.
The test for determining if an action is frivolous or without
merit is whether the plaintiff can make a rational argument on the
law or facts in support of the claim. Neitzke v. Williams, 490 U.S.
319, 325 (1989). A complaint fails to state a claim for relief if the
complaint does not allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009).
In reviewing the complaint, the Court accepts the factual
allegations as true and liberally construes them in plaintiff’s favor.
Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Conclusory
statements and labels are insufficient. Fed. R. Civ. P. 8; Schatz v.
Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)
(holding that, in order to determine if a complaint states a plausible
claim, the court must take non-conclusory, non-speculative facts as
true, draw all reasonable inferences in the pleader’s favor, and
isolate and ignore statements that simply rehash claim elements or
offer only legal labels and conclusions). Instead, sufficient facts
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must be provided to “state a claim for relief that is plausible on its
face.” Alexander v. United States, 721 F.3d 418, 422 (7th Cir.
2013)(internal quotation omitted).
II.
ANALYSIS
Plaintiff Demetrius Armstrong is an inmate within the Illinois
Department of Corrections who, at all relevant times, was housed at
the Western Illinois Correctional Center (“Western”). Defendant Lt.
Fishel is a lieutenant at Western. Defendant M. Mountain is a
correctional officer at Western, and Defendant John Doe is a
correctional officer at Western.
Armstrong alleges that these Defendants violated his
constitutional rights in two ways. First, Armstrong claims that Lt.
Fishel violated his First Amendment rights by asking him to be
quiet during meal time. Armstrong asserts that Lt. Fishel’s actions
violated his First Amendment rights because there is no IDOC rule
or regulation at Western prohibiting him from talking during meal
time.
Second, Armstrong alleges that Defendants used excessive
force against him in violation of his Eighth Amendment rights.
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Specifically, Armstrong asserts that Defendant Mountain used
pepper spray on him without reason or justification and that, after
he had been handcuffed, Defendants kicked him in the face and
groin, pulled his arms, and punched him in the stomach.
“To prevail in this section 1983 action, [Armstrong] must
establish (1) that he had a constitutionally protected right, (2) that
he was deprived of that right, (3) that [Defendants] intentionally
deprived him of that right and (4) that [Defendants] acted under
color of state law.” Forrest v. Prine, 620 F.3d 739, 743 (7th Cir.
2010). Armstrong has failed to allege sufficiently that he had a
constitutionally protected First Amendment right of which Lt. Fishel
deprived him. Accordingly, Armstrong’s First Amendment claim is
dismissed.
There is no generalized First Amendment right to speak
whenever one desires. In order “[t]o prevail on a First Amendment
retaliation claim, [Armstrong] must ultimately show that (1) he
engaged in activity protected by the First Amendment; (2) he
suffered a deprivation that would likely deter First Amendment
activity in the future; and (3) the First Amendment activity was at
least a motivating factor in the Defendants’ decision to take the
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retaliatory action.” Id. at 546 (internal quotations omitted). Bridges
v. Gilbert, 557 F.3d 541, 547-48 (7th Cir. 2009)(internal quotations
and citations omitted). Armstrong has failed to allege any facts that
would satisfy these elements. Therefore, his First Amendment
claim is dismissed.
On the other hand, Armstrong has sufficiently alleged a
violation of his Eighth Amendment rights in that Defendants
allegedly used excessive force against him.
A plaintiff must
demonstrate that the force used against him by a state actor in an
excessive force claim was not applied in a good faith effort to
maintain or restore discipline but was applied maliciously and
sadistically to cause harm. Wilkins, 559 U.S. 34, 37 (2010)(quoting
Hudson v. McMillian, 503 U.S. 1, 7 (1992)).
Here, Armstrong has alleged that Defendant Mountain used
pepper spray on him without provocation or necessity. Armstrong
also alleges that Defendants hit and kicked him after he had been
placed in handcuffs. The Court finds that Armstrong’s allegations
are sufficient to state a cause of action against Defendants for
violating his Eighth Amendment rights.
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Finally, Armstrong has filed a motion for appointment of
counsel to represent him in this case. Typically, the Court will not
consider the merits of such a motion until a plaintiff shows that he
has made reasonable efforts to find counsel on his own. Pruitt v.
Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). A plaintiff usually
makes this showing by writing to several different law firms and
attaching the responses to the motion for appointment of counsel.
Armstrong has not demonstrated that he has attempted to
find counsel on his own prior to filing this motion. Therefore, his
motion is denied. Armstrong may renew his motion for counsel, but
if he chooses to do so, he should attach the responses that he has
received from the lawyers he has contacted who declined his
request to represent him. In addition, Armstrong should set forth
his educational level, work experience inside and outside of the
facility, his litigation experience (if any), and any other facts
relevant to whether he is competent to proceed without an attorney.
IT IS, THEREFORE, ORDERED that:
1.
Pursuant to the Court’s merit review of the Complaint
under 28 U.S.C. § 1915A, the Court finds that Plaintiff’s Complaint
states a claim against Defendants for excessive force in violation of
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his Eighth Amendment rights. Any additional claim(s) shall not be
included in the case except at the Court’s discretion on a motion by
a party for good cause shown or pursuant to Federal Rule of Civil
Procedure 15.
2.
The Court also finds that Plaintiff’s Complaint fails to
state a cause of action for a violation of his First Amendment rights.
Therefore, that claim is dismissed.
3.
This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for Defendants before
filing any motions in order to give Defendants notice and an
opportunity to respond to those motions. Motions filed before
Defendants’ counsel has filed an appearance will generally be
denied as premature. Plaintiff need not submit any evidence to the
Court at this time unless otherwise directed by the Court.
4.
The Court will attempt service on Defendants by mailing
them a waiver of service. Defendants have 60 days from service to
file an Answer. If Defendants have not filed an Answer or appeared
through counsel within 90 days of the entry of this order, Plaintiff
may file a motion requesting the status of service. After Defendants
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have been served, the Court will enter an order setting discovery
and dispositive motion deadlines.
5.
With respect to a Defendant who no longer works at the
address provided by Plaintiff, the entity for whom that Defendant
worked while at that address shall provide to the Clerk said
Defendant’s current work address, or, if not known, said
Defendant’s forwarding address. This information shall be used
only for effectuating service. Documentation of forwarding
addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
6.
Defendants shall file an answer within 60 days of the
date the waiver is sent by the clerk. A motion to dismiss is not an
answer. The answer should include all defenses appropriate under
the Federal Rules. The answer and subsequent pleadings shall be
to the issues and claims stated in this Order. In general, an answer
sets forth Defendants’ positions. The Court does not rule on the
merits of those positions unless and until a motion is filed by
Defendants. Therefore, no response to the answer is necessary or
will be considered.
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7.
Once counsel has appeared for Defendants, Plaintiff need
not send copies of his filings to that Defendant or to that
Defendant’s counsel. Instead, the Clerk will file Plaintiff’s
documents electronically and send notices of electronic filing to
defense counsel. The notices of electronic filing shall constitute
service on Defendants pursuant to Local Rule 5.3. If electronic
service on Defendants is not available, Plaintiff will be notified and
instructed accordingly.
8.
Counsel for Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the deposition.
9.
Plaintiff shall immediately notify the Court, in writing, of
any change in his mailing address and telephone number.
Plaintiff’s failure to notify the Court of a change in mailing address
or phone number will result in dismissal of this lawsuit, with
prejudice.
IT IS FURTHER ORDERED THAT THE CLERK IS
DIRECTED TO: 1) ATTEMPT SERVICE ON DEFENDANTS
PURSUANT TO THE STANDARD PROCEDURES; 2) SET AN
INTERNAL COURT DEADLINE 60 DAYS FROM THE ENTRY OF
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THIS ORDER FOR THE COURT TO CHECK ON THE STATUS OF
SERVICE AND ENTER SCHEDULING DEADLINES; 3) SHOW
PLAINTIFF’S MOTION FOR THE APPOINTMENT OF COUNSEL [5]
AS DENIED; AND TO SHOW PLAINTIFF’S FIRST AMENDMENT
CLAIM AS DISMISSED FOR FAILING TO STATE A CAUSE OF
ACTION UPON WHICH RELIEF CAN BE GRANTED.
LASTLY, IT IS ORDERED THAT IF A DEFENDANT FAILS
TO SIGN AND RETURN A WAIVER OF SERVICE TO THE CLERK
WITHIN 30 DAYS AFTER THE WAIVER IS SENT, THE COURT
WILL TAKE APPROPRIATE STEPS TO EFFECT FORMAL
SERVICE THROUGH THE U.S. MARHSAL’S SERVICE ON THAT
DEFENDANT AND WILL REQUIRE THAT DEFENDANT TO PAY
THE FULL COSTS OF FORMAL SERVICE PURSUANT TO
FEDERAL RULE OF CIVIL PROCEDURE 4(d)(2).
ENTER: March 31, 2014
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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