Stone v. Hammers et al

Filing 7

MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 5/8/2017. Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states claims for the violation of his First Amendment right to free sp eech and Fourteenth Amendment right to procedural due process. Defendant Wise is dismissed, without prejudice, for failure to state a claim against him. Plaintiff's motion for the Court to appoint counsel is denied, d/e 4 . HIPAA Order to enter. This case is now in the process of service.(MAS, ilcd)

E-FILED

Monday, 08 May, 2017 11:24:33 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS

MICHAEL STONE,
Plaintiff,
v.
JUSTIN HAMMERS,
SHANE DONELSON,
ANDREW BOTTRELL,
LEVORNE CLEMONS,
COUNSELOR WISE,
Defendants.

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17-CV-1117

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in the Illinois
River 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

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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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.
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, on August 7, 2015, someone from
internal affairs took a letter in Plaintiff’s possession while Plaintiff
was working in the barber shop in the Illinois River Correctional
Center. Plaintiff was questioned about whether the letter was a
gang communication. Plaintiff denied this accusation, but he was
fired and received a disciplinary report written by Defendant
Donelson charging Plaintiff with gang activity, lying, and pursuing
an unauthorized business venture (trying to publish a book).
Plaintiff explained at his disciplinary committee hearing that the
letter contained no gang language and not an attempt to publish a
book. Defendant Bottrell and Levorne recommended that Plaintiff
be found guilty even though they did not have a copy of the letter at
the disciplinary hearing. Plaintiff was punished with two months
segregation, two months grade demotion, and six months of contact
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visit restrictions. Defendant Hammers approved the punishment.
Defendant Wise either did not respond or did not respond properly
to Plaintiff’s grievances.
These allegations state plausible First Amendment (free
speech) and procedural due process claims. Whether the
punishment Plaintiff received was significant enough to trigger
procedural due process protections should await a more developed
factual record. See Kervin v. Barnes, 787 F.3d 833, 837 (7th Cir.
2015)(placement in segregation for 30 days and loss of privileges did
not trigger procedural due process protections where inmate did not
allege “significant psychological or other injury” from segregation).
However, Plaintiff states no claim against Defendant Wise, the
counselor who allegedly failed to respond to Plaintiff’s grievances or
failed to respond appropriately. This alleged failure does not give
rise to a constitutional violation because inmates have no
constitutional right to an effective grievance procedure. Antonelli v.
Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). However, the lack of
response is relevant to whether Plaintiff exhausted his
administrative remedies. Lewis v. Washington, 300 F.3d 829, 833

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(7th Cir. 2002)(prison’s failure to respond to a grievance renders the
grievance process unavailable).
IT IS THEREFORE ORDERED:
1)

Pursuant to its merit review of the Complaint under 28

U.S.C. § 1915A, the Court finds that Plaintiff states claims for the
violation of his First Amendment right to free speech and
Fourteenth Amendment right to procedural due process.

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)

Defendant Wise is dismissed, without prejudice, for

failure to state a claim against him.
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.
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4)

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.
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 Opinion. In general, an
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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.
7)

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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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.
10)

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).
11)

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.
12)

Plaintiff’s motion for the Court to appoint counsel is

denied (4), The Court does not have the authority to require an
attorney to accept pro bono appointment on a civil case such as
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this. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). The most
the Court can do is ask for volunteer counsel to take the case
without pay. In determining whether the Court should attempt to
find an attorney to voluntarily take the case, the question is “given
the difficulty of the case, does the plaintiff appear competent to
litigate it himself?" Pruitt, 503 F.3d at 654-55 (7th Cir. 2007). On
this record, Plaintiff appears competent to proceed pro se. His
complaint adequately convey the factual basis for his claims, and
he has personal knowledge of many of the relevant facts underlying
his claims. Plaintiff may renew his motion on a more developed
factual record, setting forth his educational level, any jobs he has
had inside or outside of prison, any classes he has taken in prison,
and his litigation experience in state and federal court.
13)

The clerk is directed to terminate Defendant Wise.

14)

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.

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15)

The Clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: May 8, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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