James v Marano et al
Filing
5
MERIT REVIEW OPINION: Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states an Eighth Amendment excessive force claim against Defendant Dyer. This case proceeds. Except for Defendant Dyer, all other claims and defendants are dismissed, without prejudice, as improperly joined. The clerk is directed to terminate Defendants Marano, Thomas, Moss, Nelson, Bret, Benner, and Melvin. The clerk is directed to update the docket to reflect that Defendant Dyer's first name is Jason. The clerk is directed to enter the standard order granting Plaintiff's in forma pauperis petition and assessing an initial partial filing fee and to attempt service on Defendant Dyer. The clerk is directed to entered the standard HIPAA protective order. SEE WRITTEN MERIT REVIEW OPINION. Rule 16 Deadline 9/25/2017. Entered by Judge Sue E. Myerscough on 07/27/2017. (SKN, ilcd)
E-FILED
Thursday, 27 July, 2017 09:30:28 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
NED JAMES 3rd,
Plaintiff,
v.
DAIDRA MARANO, et al.,
Defendants.
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17-CV-1261
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.
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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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 female staff are not allowed to speak with
Plaintiff because of Plaintiff’s case, presumably Plaintiff’s criminal
case. According to the IDOC website, Plaintiff must register as a
sex offender and is serving a 2014 conviction until the year 2070 for
home invasion, aggravated criminal sexual assault, and armed
robbery. www.illinois.gov/idoc (last visited 7/24/17). Dr. Marano,
who is a female mental health professional, has told Plaintiff that
she does not talk to rapists or predators. Defendant Moss, another
female mental health professional, has allegedly told other inmates
why Plaintiff is incarcerated and that she hates Plaintiff.
On November 16, 2016, Plaintiff was placed on a crisis watch
after Defendant Moss embarrassed Plaintiff by telling him in front of
inmates that female staff were not allowed to speak to Plaintiff.
While on crisis watch, Officer Madrigal gave Plaintiff a tooth brush,
even though tooth brushes are not permitted for inmates on crisis
watch. When Sergeant Dyer tried to retrieve the tooth brush,
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Plaintiff withheld the tooth brush in the hopes of bargaining for an
extra food tray. Sergeant Dyer than sprayed mace in Plaintiff’s face
twice. Plaintiff yelled that he had asthma and could not breathe,
but Sergeant Dyer only laughed. The other defendants failed to
take action after Plaintiff told them about this incident.
Plaintiff also alleges that the mental health professionals that
are allowed to talk to Plaintiff have ignored Plaintiff, particularly,
Plaintiff’s need for help dealing with a sexual assault in Menard
Correctional Center. Plaintiff also alleges that he has been told that
he is not in some group therapies because of Plaintiff’s lawsuits.
Plaintiff arguably states an Eighth Amendment excessive force
claim against Sergeant Dyer for the mace spraying. However,
Plaintiff states no claim for failing to protect him from that force.
The other defendants were not informed of the incident until after
the incident occurred. The other defendants are not liable for
failing to take the corrective action Plaintiff wanted. Soderbeck v.
Burnett County, 752 F.2d 285, 293 (7th Cir. 1985)(“Failure to take
corrective action cannot in and of itself violate section 1983.
Otherwise the action of an inferior officer would automatically be
attributed up the line to his highest superior . . . .”). Plaintiff also
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states no claim based on the tooth brush he was given on crisis
watch. Plaintiff did not harm himself or anyone else with the tooth
brush.
The rest of Plaintiff’s allegations, if any of the allegations state
a claim, are not properly joined in this case. Wheeler v. Wexford
Health Sources, Inc., 689 F.3d 680, 683 (7th Cir. 2012)(“A litigant
cannot throw all of his grievances, against dozens of different
parties, into one stewpot. Joinder that requires the inclusion of
extra parties is limited to claims arising from the same transaction
or series of related transactions.”); George v. Smith, 507 F.3d 605,
607 (7th Cir. 2007)(“Unrelated claims against different defendants
belong in different suits . . .”). Plaintiff’s lawsuits should each be
“confined to one group of injuries and defendants.” Kadamovas v.
Stevens, 706 F.3d 843, 846 (7th Cir. 2013)(quoting Wheeler, 689
F.3d at 683). The Court will dismiss all the defendants, other than
Sergeant Dyer, as improperly joined. The Court states no opinion
on whether Plaintiff’s other allegations state a federal claim. If
Plaintiff decides to file a new lawsuit on the other allegations, the
presiding judge may conclude that Plaintiff fails to state a federal
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claim, which would cause Plaintiff to be assessed a strike under 28
U.S.C. § 1915(g).
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 an Eighth
Amendment excessive force claim against Defendant Dyer.
This
case proceeds solely on the claim 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)
Except for Defendant Dyer, and all other claims and
defendants are dismissed, without prejudice, as improperly joined.
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)
The clerk is directed to terminate Defendants
Marano, Thomas, Moss, Nelson, Bret, Benner, and Melvin.
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13)
The clerk is directed to update the docket to reflect
that Defendant Dyer’s first name is Jason.
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 Defendant Dyer pursuant to the standard
procedures.
15)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: 7/27/2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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