Wiggins v. Bergin
Filing
19
MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 5/30/2018. See written Order. Plaintiff's motion to amend complaint 18 is granted. Clerk is directed to docket the amended complaint attached to plaintiff's motion. This case is now in the process of service. Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction 15 is denied. Plaintiff's motions for counsel 13 , 14 are denied, with leave to renew. (LN, ilcd)
E-FILED
Wednesday, 30 May, 2018 01:32:50 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
MALCOLM WIGGINS,
v.
RITA BERGIN,
et al.
)
)
Plaintiff,
)
)
)
18-1066
)
)
)
Defendants. )
MERIT REVIEW ORDER #2
This case is before the court for a merit review of the plaintiff's
amended complaint. 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 A(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 amended 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).
Plaintiff alleges in his amended complaint that Defendant
Bergin has refused to issue him call passes to the law library,
despite the fact that he is no longer medically restricted from going
to the law library. Liberally construed, plaintiff alleges that
Defendant Bergin has done so without a legitimate penological
purpose, and in retaliation for lawsuits he filed that are currently
pending. Plaintiff alleges that Defendant Bergin’s actions have
prevented him from meeting court deadlines in these cases.
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Plaintiff also alleges, in an unrelated claim, that medical staff at the
prison has denied him treatment for an abscessed tooth.
Plaintiff states First Amendment claims for denial of access to
the courts and retaliation against Defendant Bergin. See Marshall
v. Knight, 445 F.3d 965, 968 (7th Cir. 2006); Bridges v. Gilbert, 557
F.3d 541, 553 (7th Cir. 2009).
Plaintiff, however, cannot bring unrelated claims against
different defendants in the same lawsuit. George v. Smith, 507 F.3d
605, 607 (7th Cir. 2007) (“Unrelated claims against different
defendants belong in different suits.”); Owens v. Godinez, 860 F.3d
434, 436 (7th Cir. 2017) (“[D]istrict courts should not allow inmates
to flout the rules for joining claims and defendants…or to
circumvent the Prison Litigation Reform Act’s fee requirements by
combining multiple lawsuits into a single complaint.”). The medical
claim plaintiff alleges in his amended complaint does not involve
Defendant Bergin. Therefore, the Court will dismiss, without
prejudice, the medical claims against Defendants Olada and
Osmundson.
Finally, plaintiff filed a motion for temporary restraining order
and preliminary injunction (#15) seeking a court order directing
officials at Illinois River Correctional Center to provide him access
to the law library. Access to a law library is not the only means by
which prison officials can provide meaningful access to the courts.
Bounds v. Smith, 430 U.S. 817, 830 (1977) (“[W]hile adequate law
libraries are one constitutionally acceptable method to assure
meaningful access to the courts, [this] does not foreclose alternative
means to achieve that goal.”). Plaintiff indicates in his
memorandum of law that he has been able to consult a jailhouse
lawyer for help in preparing his legal documents. At this stage,
prison officials appear to have provided at least some means to
plaintiff to satisfy their constitutional requirements. Therefore, the
Court cannot conclude that plaintiff has shown a reasonable
likelihood of success on the merits. Plaintiff’s motion is denied.
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IT IS THEREFORE ORDERED:
1)
Plaintiff’s motion to amend complaint (#18) is granted.
Clerk is directed to docket the amended complaint
attached to plaintiff’s motion.
2)
Pursuant to its merit review of the amended complaint
under 28 U.S.C. § 1915A, the court finds that the
plaintiff states First Amendment claims for denial of
access to the courts and retaliation against Defendant
Bergin. Any remaining defendants are dismissed. 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.
3)
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.
4)
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.
5)
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
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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)
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.
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 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.
8)
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.
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9)
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.
10)
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).
11)
The clerk is directed to attempt service on the remaining
defendants pursuant to the standard procedures.
12)
Plaintiff’s Motion for Temporary Restraining Order and
Preliminary Injunction (#15) is denied.
13)
Plaintiff’s motions for counsel (#13, 14) are denied, with
leave to renew. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th
Cir. 2007). Although plaintiff states he wrote several
lawyers, a plaintiff typically meets this requirement by
attaching copies of the letters sent and the responses
received. Furthermore, plaintiff has personal knowledge
of the facts, he appears to have been able to adequately
communicate them with the Court, he should be able to
obtain relevant documents during discovery, and this
case does not appear overly complex at this time.
Plaintiff also states that his undisclosed medical
condition will inhibit his ability to litigate this case.
Plaintiff, however, has not provided enough information
about his medical condition for the Court to conclude his
ability to litigate has been hindered. Plaintiff’s request to
proceed in forma pauperis is denied as moot as the Court
granted Plaintiff’s previous petition to proceed in forma
pauperis. See Text Order entered March 2, 2018.
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Entered this 30th day of May, 2018.
/s/Harold A. Baker
________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE
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