Billops v. Prentice et al

Filing 7

MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 9/6/2017. (Rule 16 Deadline 11/6/2017.) See written Order. The clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountabili ty Act. The clerk is directed to terminate Susan Prentice as a defendant. The clerk is directed to attempt service on the remaining defendants pursuant to the standard procedures. Plaintiff's Motion 5 is denied with leave to renew. (LN, ilcd)

E-FILED

Wednesday, 06 September, 2017 10:14:33 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
MARLON BILLOPS,
Plaintiff,
v.
SUSAN PRENTICE, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

17-CV-1348

MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se, and currently incarcerated in
Pontiac Correctional Center (“Pontiac”), was granted leave to
proceed in forma pauperis. The case is now before the court for a
merit review of 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.
Plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983
alleging that Defendants Copeland, Whicker, Meister, and the Doe
Defendants kicked him in the head, face, and lower body for five (5)
minutes following plaintiff’s alleged less-than-amicable discussion
with Defendant Prentice about getting a food tray. Plaintiff alleges
1

he was lying on the ground (per orders to do so) in shackles when
the attack occurred. Plaintiff stated at the hearing that, as a result,
his eye was swollen shut, his forehead was cut open, his wrists
were scarred from the handcuffs, and they messed up his back.
Plaintiff alleges that Defendant Meister denied him access to
medical treatment on one occasion shortly after the incident, but he
apparently received medical treatment later that day. Plaintiff also
alleges that another inmate told him that Defendants Prentice and
Meister took his stuff. Plaintiff also alleges delays in medical
treatment and the grievance process caused by individuals not
named as defendants.
Plaintiff states a claim for excessive force against Defendants
Copeland, Whicker, Meister, and the Doe Defendants. See Hudson
v. Palmer, 503 U.S. 1 (1992). Plaintiff also states a claim for
deliberate indifference to a serious medical need against Defendant
Meister. See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (prison
guards can be held constitutionally liable for denying or delaying
access to medical treatment).
Plaintiff does not provide enough information regarding his
other allegations to state a constitutional claim. Plaintiff’s
allegations that suggest Defendant Prentice ordered the attack are
speculative at best and Plaintiff does not allege Defendant Prentice
was involved in the alleged use of force. See Pepper v. Village of Oak
Park, 430 F.3d 805, 810 (7th Cir. 2005) (“To be liable under
[Section] 1983, an individual defendant must have caused or
participated in a constitutional deprivation.”). Plaintiff also does
not provide enough information about why his property was taken
or whether he got it back, and he has no right to the grievance
process itself.
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 Eighth
Amendment claims for (1) excessive force against defendants
Copeland, Whicker, Meister, and the Doe Defendants, and (2)
deliberate indifference to a serious medical need against Defendant
Meister. Any additional claims shall not be included in the case,
2

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
3

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 Susan Prentice as a
defendant.
12. The clerk is directed to attempt service on the remaining
defendants pursuant to the standard procedures.

4

13. Plaintiff filed a Motion to Request Counsel [5]. The
Plaintiff has no constitutional or statutory right to counsel in this
case. In considering the Plaintiff’s motion, the court asks: (1) has
the indigent Plaintiff made a reasonable attempt to obtain counsel
or been effectively precluded from doing so; and if so, (2) given the
difficulty of the case, does the plaintiff appear competent to litigate
it himself? Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007).
Plaintiff has shown that he made a reasonable attempt to secure
counsel on his own. Plaintiff, however, has personal knowledge of
the facts, he was able to adequately convey them to the Court at the
hearing, he should be able to obtain his medical records through
the discovery process, and his claims do not appear overly complex
at this point. Plaintiff’s Motion [5] is denied with leave to renew.

Entered this 6th day of September, 2017
/s/Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE

5