Smith v. Nurse

Filing 5

MERIT REVIEW ORDER entered by Chief Judge Sara Darrow on 10/28/2024. IT IS THEREFORE ORDERED: 1. Pursuant to its merit review of the Complaint under 28 U.S.C. Section 1915A, the court finds that the plaintiff states a First Amendment retaliation cl aim against Defendant Nurse in her individual capacity. 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. SEE FULL WRITTEN ORDER.(SAG)

E-FILED

Monday, 28 October, 2024 09:52:51 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
PAUL SMITH,
Plaintiff,
v.
MINDI NURSE, et al.
Defendants.

)
)
)
)
)
)
)
)
)

24-1266

MERIT REVIEW ORDER
Plaintiff, proceeding pro se and presently incarcerated at Menard Correctional Center,
filed the present lawsuit pursuant to 42 U.S.C. § 1983. The case is now before the Court for a
merit review of Plaintiff’s claims. The Court must “screen” Plaintiff’s complaint, and through
such process to identify and dismiss any legally insufficient claim, or the entire action if
warranted. 28 U.S.C. § 1915A. 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.” Id.
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). Conclusory statements
and labels are insufficient—the facts alleged must “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 that he filed at least six grievances and three state-court lawsuits against
Defendant Nurse while he was incarcerated at the medium security unit at Pontiac Correctional
Center. Plaintiff alleges that Defendant Nurse also “signed off” on at least 20 other grievances he
had submitted complaining about the conduct of other Pontiac officials. Plaintiff alleges that he

Page 1 of 3

has also sent complaints about Defendant Nurse to the Governor of Illinois, the Illinois Inspector
General’s Office, and other offices within the Illinois Department of Corrections.
Plaintiff alleges that he was later transferred to Lawrence Correctional Center, a
maximum security prison, despite his medium security classification, the lack of a disciplinary
infraction that would have required such a transfer, and a medical hold that had been in place at
the time.
Plaintiff states a First Amendment retaliation claim against Defendant Nurse in her
individual capacity. Daugherty v. Page, 906 F.3d 606, 610 (7th Cir. 2018).
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 a First Amendment retaliation claim against Defendant
Nurse in her individual capacity. 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.
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 notice to
the defendants 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
Page 2 of 3

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 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 attempt service on Mindi Nurse pursuant to the
standard procedures.
Entered this 28th day of October, 2024.

s/Sara Darrow
SARA DARROW
CHIEF U.S. DISTRICT JUDGE

Page 3 of 3