Giles v. Bukowski et al
Filing
14
MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 7/21/2015. (Rule 16 Deadline 9/21/2015.) See written Order. THE CLERK IS DIRECTED TO Dismiss Defendants Ken Robinson and Timothy Bukowski as they are no longer listed as a Defendants in the a mended complaint; 2) add new Defendants Correctional Officers Mayo, Meehan and Tobek; 3) dismiss Plaintiff's motion for a status update as moot 12 ; 4) attempt service on Defendants pursuant to the standard procedures; 5) set an internal court deadline 60 days from the entry of this order for the court to check on the status of service and enter scheduling deadlines and 6) enter the Court's standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. (LN, ilcd)
E-FILED
Tuesday, 21 July, 2015 03:10:15 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JON GILES,
Plaintiff,
vs.
15-2068
TIMOTHY BUKOWSKI, et.al.,
Defendants.
MERIT REVIEW AND CASE MANAGEMENT ORDER
This cause is before the court for a consideration of the Plaintiff’s amended
complaint. The Plaintiff’s initial complaint was dismissed for failure to state a
claim upon which relief could be granted. See May 5, 2015 Merit Review Order.
The Plaintiff had clearly alleged a violation of his constitutional rights based on a
failure to protect him from an inmate assault. However, the Plaintiff identified the
wrong defendants. Therefore, the court allowed additional time to file an amended
complaint clarifying the claims and the Plaintiff has now complied. Id.
The court is still required by 28 U.S.C. §1915A to “screen” the Plaintiff’s
amended 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.
The Plaintiff’s amended complaint identifies five Defendants from the
Jerome Combs Detention Center including Correctional Officer Tobek,
Correctional Officer Mayo, Correctional Officer Meehan, Corrections Chief Chad
Kolitwenzew and Assistant Chief Robert Schultz. The Plaintiff says he would like
to dismiss Defendant Ken Robinson who was named in his original complaint and
his new complaint no longer names Sheriff Bukowski as a Defendant.
The Plaintiff again explains he is serving a state prison sentence, but was
housed at the Jerome Combs Detention Center as a federal pre-trial detainee. The
Plaintiff says the jail requires convicted inmates to be housed separately from
pretrial detainees. Therefore, he was originally housed in Administrative
Detention with other inmates who had been convicted of crimes. However,
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Defendant Kolitwenzew moved him to an area with pretrial detainees. In addition,
Defendants Kolitwenzew and Schultz made the decision to move a mentally
unstable inmate with a well-known history of violent attacks to the less secure area
where the Plaintiff was housed. Although the inmate was kept in a single man cell,
he was allowed out of his cell for one hour each day.
On October 9, 2014, the inmate hid in the jail shower area and attacked
Plaintiff’s cell mate. The Plaintiff says it was Defendants Mayo, Meehan and
Tobek’s job to supervise this inmate. When Plaintiff attempted to help his cell
mate, the inmate began attacking the Plaintiff as Officers Mayo, Meehan and
Tobek stood by and watched. Finally, the guards intervened and Defendant Mayo
told the Plaintiff to lay down to be cuffed up. The Plaintiff complied, but again the
inmate jumped on him and continued to attack him. The Plaintiff says the guards
again failed to protect him from the assault. Plaintiff says he was taken to the
hospital and still suffers from his injuries.
The Plaintiff has adequately alleged a claim against each of the named
Defendants. The court notes since the Plaintiff was a pre-trial detainee at the jail,
his claim is analyzed under the Due Process Clause of the Fourteenth Amendment
rather than the Eighth Amendment. Washington v. LaPorte Cnty. Sheriff's Dept.,
306 F.3d 515, 517 (7th Cir.2002) (citations omitted). However, there appears to
be little distinction since “[t]he protections for pre-trial detainees are at least as
great as the Eighth Amendment protections available to a convicted prisoner” and
courts “frequently consider the standards to be analogous.” Id. (internal quotation
marks and citations omitted).
The Plaintiff has stated a claim against Defendants Kolitwenzew, Schultz,
Mayo, Meehan and Tobek in their individual capacities and also against Defendant
Kolitwenzew in official capacity.
IT IS THEREFORE ORDERED that:
1) Pursuant to its merit review of the amended complaint under 28 U.S.C. §
1915A, the court finds the Plaintiff has alleged Defendants Kolitwenzew,
Schultz, Mayo, Meehan and Tobek violated his Fourteenth Amendment
rights when they failed to protect him from an inmate attack. 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.
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2) 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.
3) The Court will attempt service on Defendants by mailing each Defendant
a waiver of service. Defendants have 60 days from service 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.
4) 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.
5) 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 Order.
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.
6) Once counsel has appeared for a Defendant, Plaintiff need not send copies
of his filings to that Defendant or to that Defendant's counsel. Instead, the
Clerk will file Plaintiff's document electronically and send a notice of
electronic filing to defense counsel. The notice of electronic filing shall
constitute service on Defendants pursuant to Local Rule 5.3. If electronic
service on Defendants is not available, Plaintiff will be notified and
instructed accordingly.
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7) 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.
8) 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.
9) 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.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) Dismiss Defendants Ken Robinson and Timothy Bukowski as they
are no longer listed as a Defendants in the amended complaint; 2) add
new Defendants Correctional Officers Mayo, Meehan and Tobek; 3)
dismiss Plaintiff’s motion for a status update as moot [12]; 4) attempt
service on Defendants pursuant to the standard procedures; 5) set an
internal court deadline 60 days from the entry of this order for the court
to check on the status of service and enter scheduling deadlines and 6)
enter the Court's standard qualified protective order pursuant to the
Health Insurance Portability and Accountability Act.
ENTERED this 21st day of July, 2015.
s/ Harold A. Baker
____________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE
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