Reid v. Willson et al

Filing 8

MERIT REVIEW OPINION: Plaintiff's motion to filed an amended complaint is granted 5 . The clerk is directed to separately docket the amended complaint. Plaintiff's motions for the Court to appoint counsel is denied 4 , 6 . The clerk is di rected to terminate "internal affairs officer," Warden Melvin, Heather Cox, and Simpson. 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. 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 04/04/2018. (SKN, ilcd) Modified on 4/4/2018 to correct inadvertent typographical errors (SKN, ilcd).

E-FILED

Wednesday, 04 April, 2018 09:44:02 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
ELIJAH REID,
Plaintiff,
v.
C/O WILLSON, et al.,
Defendants.

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18-CV-1058

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 he has been placed on a “black ball list” in
retaliation for a prior lawsuit and grievances he has filed. This
means that he has been subjected to various retaliatory acts
including the withholding of medical attention and medicine,
excessive force, inhumane conditions of confinement in the prison
yard, and reduced visiting hours. He may also be alleging that
these adverse actions are racially motivated because Defendants
repeatedly call Plaintiff a racial epithet.
Plaintiff states a plausible First Amendment retaliation claim
and a Fourteenth Amendment equal protection claim. Several of
the alleged adverse actions that form the basis of the retaliation
claim also state independent constitutional claims: excessive force,
failure to intervene to stop excessive force,2 deliberate indifference
to serious medical needs, and inhumane conditions in the prison

2

 Whether Plaintiff seeks to pursue a failure to intervene claim is unclear.  

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yard. The Court cannot rule out Plaintiff’s supplemental state law
claims for the intentional infliction of emotional distress and
assault/battery.
However, Plaintiff’s allegations that Defendants Simpson and
Cox failed to return or improperly handled Plaintiff’s grievances do
not state a claim. Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th
Cir. 1996)(no constitutional right to prison grievance procedure);
George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (“Only
persons who cause or participate in the violations are responsible.
Ruling against a prisoner on an administrative complaint does not
cause or contribute to the violation.”). An inmate does not need to
access the grievance procedure in order to access the courts.
Similarly, the failure to properly investigate Plaintiff’s allegations
does not state a claim, nor does the failure to accept Plaintiff’s
version of events. See Whitlock v. Brueggemann, 682 F.3d 567,
589 (7th Cir. 2012)("There is no affirmative duty on police to
investigate."); 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
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superior . . . .”). Defendant Warden Melvin cannot be held liable
solely because he is in charge. Chavez v. Illinois State Police, 251
F.3d 612, 651 (7th Cir. 2001)(no respondeat superior liability under
§ 1983).
IT IS THEREFORE ORDERED:
1)

Plaintiff’s motion to filed an amended complaint is

granted. (d/e 5.) The clerk is directed to separately docket the
amended complaint.
2)

Pursuant to its merit review of the amended complaint

under 28 U.S.C. § 1915A, the Court finds that Plaintiff states the
following federal constitutional claims: First Amendment retaliation;
Fourteenth Amendment equal protection; Eighth Amendment
excessive force and failure to intervene to stop excessive force;
Eighth Amendment deliberate indifference to serious medical needs;
and Eighth Amendment inhumane conditions in the prison yard.
Also proceeding are Plaintiff’s supplemental state law claims for the
intentional infliction of emotional distress and assault/battery.
3)

This case proceeds solely on the claims identified

paragraph 2 above. Any additional claims shall not be included in
the case, except at the Court’s discretion on motion by a party for
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good cause shown or pursuant to Federal Rule of Civil Procedure
15.
4)

Defendants “internal affairs officer,” Warden Melvin,

Heather Cox, and Simpson are dismissed without prejudice for
failure to state a claim.
5)

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.
6)

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.

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7)

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.
8)

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 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.
9)

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
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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.
10)

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.
11)

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.

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12)

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).
13)

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.
14)

Plaintiff’s motions for the Court to appoint counsel is

denied (4, 6), 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, 654-55 (7th Cir. 2007). This typically requires
writing to several lawyers and attaching the responses. Plaintiff
attaches responses from lawyers, but those responses appear to
relate to Plaintiff’s other cases because the responses are dated
before the incidents in this case occurred.
15)

The clerk is directed to terminate “internal affairs

officer,” Warden Melvin, Heather Cox, and Simpson.

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16)

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.
17)

The Clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: April 4, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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