Walker v. Loverant et al

Filing 12

MERIT REVIEW AND CASE MANAGEMENT ORDER - Entered by Judge Harold A. Baker on 7/14/2015. (Rule 16 Deadline 9/14/2015.) The clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountabil ity Act. The defendants are directed to preserve all materials confiscated from the plaintiff, and are not to alter, amend, or destroy those materials in anyway. The plaintiff's Motion for Temporary Restraining Order 5 , Motion to Admit Evidenc e in Support of Complaint and Temporary Restraining Order 8 , and Motion for an Order Granting the Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction 11 are DENIED at this time. The clerk is directed to attempt service on the defendants pursuant to the standard procedures. (LN, ilcd)

E-FILED

Tuesday, 14 July, 2015 08:49:30 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
FREDERICK WALKER,
Plaintiff,
v.
A. LOVERANT, et al.,
Defendants.

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15-CV-1201

MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se and currently incarcerated in the Pontiac
Correctional Center, was granted leave to proceed in forma pauperis. The case is now
before the court for a merit review of the plaintiff’s claims. The court is required by 28
U.S.C. § 1915A to “screen” the plaintiff’s complaint, and through such process to
identify and dismiss any legally insufficient claim, or the entire action if warranted. A
claim is legally insufficient if it “(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or (2) seeks monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. § 1915A.
In reviewing the complaint, the court accepts the factual allegations as true,
liberally construing them in the plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 649 (7th
Cir. 2013). The court has reviewed the complaint and has also held a video merit
review hearing in order to give the plaintiff a chance to personally explain his claims to
the court.
The plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging that officials
at the Pontiac Correctional Center confiscated exculpatory and exonerating evidence
related to his criminal case from his cell, and officials have refused to return it. The
plaintiff alleges he is now prohibited, or severely hindered, in pursuing that legal claim.
The plaintiff seeks injunctive relief for the immediate return of his legal property.
The Court concludes the plaintiff has stated a First Amendment access to courts
claim, and the case will proceed accordingly. However, a party seeking injunctive relief
has the burden of proving that he will suffer irreparable harm if the relief is not granted.
Ty, Inc., v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001). Here, plaintiff does not
present this as an emergency or claim that he will suffer irreparable harm if the matter
is left to be decided in the normal course. The plaintiff’s request for injunctive relief is
denied at this time but will be consolidated with the other matters for a trial on the
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merits pursuant to Fed.R.Civ.P. 65(a)(2). The defendants must preserve all materials
that have been confiscated from the plaintiff, and are not to alter, amend, or destroy
those materials in anyway.
IT IS THEREFORE ORDERED:
1.
Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the
court finds that the plaintiff states a First Amendment access to courts claim against the
named defendants. Any additional claims shall not be included in the case, except at
the court’s discretion on motion by a party for good cause shown or pursuant to Federal
Rule of Civil Procedure 15.
2.
This case is now in the process of service. The plaintiff is advised to wait
until counsel has appeared for the defendants before filing any motions, in order to give
the 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. The plaintiff need not submit any evidence to the court at this time, unless
otherwise directed by the court.
3.
The court will attempt service on the defendants by mailing each
defendant a waiver of service. The defendants have 60 days from the date the waiver is
sent to file an answer. If the defendants have not filed answers or appeared through
counsel within 90 days of the entry of this order, the plaintiff may file a motion
requesting the status of service. After the defendants have been served, the court will
enter an order setting discovery and dispositive motion deadlines.
4.
With respect to a defendant who no longer works at the address provided
by the 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.
5.
The 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 opinion. In general, an answer
sets forth the defendants' positions. The court does not rule on the merits of those
positions unless and until a motion is filed by the defendants. Therefore, no response to
the answer is necessary or will be considered. The defendants are directed , if in fact
they possess them, to preserve the documentation plaintiff alleges has been seized by
the defendants.

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6.
This district uses electronic filing, which means that, after defense counsel
has filed an appearance, defense counsel will automatically receive electronic notice of
any motion or other paper filed by the plaintiff with the clerk. The plaintiff does not
need to mail to defense counsel copies of motions and other papers that the plaintiff has
filed with the clerk. However, this does not apply to discovery requests and responses.
Discovery requests and responses are not filed with the clerk. The plaintiff must mail
his discovery requests and responses directly to defendants' counsel. Discovery
requests or responses sent to the clerk will be returned unfiled, unless they are attached
to and the subject of a motion to compel. Discovery does not begin until defense
counsel has filed an appearance and the court has entered a scheduling order, which
will explain the discovery process in more detail.
7.
Counsel for the defendants is hereby granted leave to depose the plaintiff
at his place of confinement. Counsel for the defendants shall arrange the time for the
deposition.
8.
The plaintiff shall immediately notify the court, in writing, of any change
in his mailing address and telephone number. The 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.
9.
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. Marshals 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).
10.
The clerk is directed to enter the standard qualified protective order
pursuant to the Health Insurance Portability and Accountability Act.
11.
The defendants are directed to preserve all materials confiscated from the
plaintiff, and are not to alter, amend, or destroy those materials in anyway.
12.
The plaintiff’s Motion for Temporary Restraining Order (#5), Motion to
Admit Evidence in Support of Complaint and Temporary Restraining Order (#8), and
Motion for an Order Granting the Plaintiff’s Motion for a Temporary Restraining Order
and Preliminary Injunction (#11) are DENIED at this time.

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13.
The clerk is directed to attempt service on the defendants pursuant to the
standard procedures.
Entered this 14th day of July, 2015.
/s/Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE

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