Boykin v. Doe et al

Filing 6

MERIT REVIEW OPINION( Rule 16 Deadline 11/18/2016.): Plaintiff's motion for counsel is denied 4 . The clerk is directed to add Michael Melvin, the Warden at Pontiac, as a Defendant. The clerk is directed to enter the standard order granting Pla intiff's in forma pauperis petition and assessing an initial partial filing fee, if not already done, and to attempt service on Defendants pursuant to the standard procedures. The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. (SEE WRITTEN OPINION). Entered by Judge Sue E. Myerscough on 09/192016. (SKN, ilcd)

E-FILED

Monday, 19 September, 2016 03:52:36 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
DAVID BOYKIN,
Plaintiff,
v.
JOHN DOES,
Defendants.

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16-CV-1344

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE.
Plaintiff proceeds pro se from his incarceration in Pontiac
Correctional Center. His Complaint is before the Court for a merit
review pursuant to 28 U.S.C. § 1915A. This section requires the
Court to identify cognizable claims stated by the Complaint or
dismiss claims that are not cognizable.1 In reviewing the complaint,
the Court accepts the factual allegations as true, liberally
construing them in Plaintiff's favor and taking Plaintiff’s pro se
status into account. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir.
2013). However, conclusory statements and labels are insufficient.
1

A prisoner who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can
no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.” 28
U.S.C. § 1915(g).

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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)(quoted cite omitted).
Plaintiff alleges that unidentified tactical team members came
to extract Plaintiff from his cell on February 16, 2016. While
Plaintiff was face down on the floor, handcuffed and shackled, he
was allegedly punched several times in the back of his head. Then
Plaintiff’s face was slammed against the wall when Plaintiff was
picked up off the ground. Plaintiff also alleges that he was sexually
assaulted when a tactical team member grabbed Plaintiff’s buttocks
during a strip search while another tactical team member rubbed
on Plaintiff’s left ear.
Plaintiff states an Eighth Amendment claim for excessive force
and a possible Eighth Amendment claim based on the manner in
which the strip search was conducted. However, all of the four
John Doe Defendants are unidentified. Unidentified defendants
cannot be served. At this point the Warden will be added solely for
purposes of assisting in the identification of the extraction team.
IT IS THEREFORE ORDERED:

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1)

Pursuant to its merit review of the Complaint under 28

U.S.C. § 1915A, the Court finds that Plaintiff states an Eighth
Amendment claim for excessive force and a possible Eighth
Amendment claim based on the manner in which the strip search
was conducted on or around February 16, 2016. This case
proceeds solely on the claims identified in this paragraph. 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)

Warden Michael Melvin is added as a Defendant solely

for the purpose of identifying the tactical team members who
extracted Plaintiff from his cell and stripped search Plaintiff on
or around February 16, 2016.
3)

Warden Melvin is directed to ensure that the video of

the extraction is preserved.
4)

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
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denied as premature. Plaintiff need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.
5)

The Court will attempt service on Defendants by mailing

each Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent to file an Answer. If Defendants have not
filed Answers 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 have been served, the Court will enter
an order setting discovery and dispositive motion deadlines.
6)

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.
7)

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
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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 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.
8)

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 Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that 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. 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.
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9)

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.
10)

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.
11)

If a Defendants 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.
Marshal'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).
12)

Within 10 days of receiving from Defendants' counsel an

authorization to release medical records, Plaintiff is directed to sign
and return the authorization to Defendants' counsel.
13)

Plaintiff’s motion for counsel is denied (4), with leave

to renew after Plaintiff demonstrates that he has made reasonable
efforts to find counsel on his own. Pruitt v. Mote, 503 F.3d 647,
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654-55 (7th Cir. 2007). This typically requires writing to several
lawyers and attaching the responses. If Plaintiff renews his motion,
he should set forth how far he has gone in school, any jobs he has
held inside and outside of prison, any classes he has taken in
prison, and any prior litigation experience he has.
14)

The clerk is directed to add Michael Melvin, the

Warden at Pontiac, as a Defendant.
15)

The clerk is directed to enter the standard order

granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.
16)

The Clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED:
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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