Smith v. Illinois Department of Corrections et al

Filing 6

MERIT REVIEW & CASE MANAGEMENT ORDER entered by Judge Harold A. Baker on 11/20/2015. The clerk is directed to terminated the Illinois Department of Corrections, the Acting Director of the Illinois Department of Corrections, and Defendant Pfister as defendants. Rule 16 Deadline 1/19/2016. See written Order. (DS, ilcd)

E-FILED

Friday, 20 November, 2015 09:59:50 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JAMES A. SMITH,
Plaintiff,
v.
ILLINOIS DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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15-1375

MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se, and currently incarcerated in the Stateville 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).
However, conclusory statements and labels are insufficient. Enough facts must be provided to
“state a claim for relief that is plausible on its face.” Alexander v. U.S., 721 F.3d 418, 422 (7th
Cir. 2013)(citation omitted). The court has reviewed the complaint and has also held a 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 (“Pontiac”) housed him with violent inmates, allowed other inmates
to threaten him with violence, unjustly removed him from protective custody, and refused to
investigate his complaints in retaliation for a previously filed lawsuit. The plaintiff also alleges
that the defendants conspired to violate his constitutional rights.
The plaintiff states the following claims. (1) an Eighth Amendment claim for failure to
protect; (2) a First Amendment claim for retaliation (see Bridges v. Gilbert, 557 F.3d 541, 553
(7th Cir. 2009)); and (3) a claim for conspiracy to violate his constitutional rights to survive merit
review -- although to succeed at the summary judgment stage, the plaintiff will need to show that
“state official[s] . . . reached an understanding [among themselves] to deprive the plaintiff of his
constitutional rights.” Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998). Bare allegations of
conspiracy will not be enough. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2009);
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009); Cooney v. Rossiter, 583 F.3d 967, 970-71 (7th
Cir. 2009).

The Illinois Department of Corrections, its Acting Director, and Defendant Pfister, the
warden at Pontiac, should be dismissed as defendants. See Powell v. Cook County Jail, 814 F.
Supp. 757, 758 (N.D. Ill. 1993) (holding the Cook County Jail was not a person under Section
1983); Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996) (to be held liable under § 1983, a person
must personally participate in the alleged constitutional violation and may not be held liable
under respondeat superior).
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 an Eighth Amendment claim for failure to protect, a First
Amendment claim for retaliation, and a claim for conspiracy to violate his constitutional rights
against defendants Lingle, Webber, and Dematta. 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.
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 clerk is directed to terminate the Illinois Department of Corrections, the
Acting Director of the Illinois Department of Corrections, and Defendant Pfister as defendants.
12.
The clerk is directed to attempt service on the remaining defendants pursuant to
the standard procedures.
Entered this 20th day of November, 2015.
/s/Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE