Williams v. Lewellyn et al
Filing
5
MERIT REVIEW OPINION entered by Chief Judge James E. Shadid on 11/02/2015. IT IS THEREFORE ORDERED: 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 full written Opinion.(JS, ilcd)
E-FILED
Monday, 02 November, 2015 03:49:45 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
OLLIE G. WILLIAMS, JR.,
Plaintiff,
v.
CAPTAIN RAYMOND
LEWELLYN and
LT. BARETT,
Defendants.
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15-CV-2254
MERIT REVIEW OPINION
JAMES E. SHADID, U.S. District Judge.
Plaintiff proceeds pro se from his detention in the Vermilion
County Jail. 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. 2013).
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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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).
ALLEGATIONS
Plaintiff alleges that for over six months he was kept in
segregation in the Vermilion County Jail for purportedly violating
jail rules, but he allegedly received no written notice of the charge
against him, no hearing, no opportunity to call witnesses in his
defense, and no written statement of reasons for the disciplinary
decision. Plaintiff alleges that his segregation was in retaliation for
associating with other inmates with whom the guards were upset.
While being escorted to segregation, Plaintiff’s arm was allegedly
injured by police officers who twisted Plaintiff’s arm and then
denied Plaintiff’s requests for medical care.
Plaintiff also alleges that the law library at the Jail is
inadequate and that his property has either been stolen or gone
missing.
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ANALYSIS
Short periods of segregation or segregation for legitimate
reasons—such as lack of space or safety concerns—do not offend a
pretrial detainee’s constitutional rights. Higgs v. Carver, 286 F.3d
437, 438 (7th Cir. 2002). However, “a pretrial detainee cannot be
placed in segregation as punishment for a disciplinary infraction
without notice and an opportunity to be heard; due process
requires no less.” Id. At this point, Plaintiff states a plausible
procedural due process claim arising from his placement in
segregation.
Plaintiff’s other allegations are too vague and conclusory to
state a constitutional claim. Plaintiff alleges excessive force but he
does not say whether either Defendant was involved in the alleged
excessive force, what the force was (other than twisting his arm),
and whether he was compliant. He says his request for medical
care was denied, but he does not say what his injury was, what
medical treatment he needed, or who denied the request.
Plaintiff also alleges an inadequate library, but that alone does
not violate the Constitution. Plaintiff does not say whether or how
he was denied access the courts or whether and how that denial
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prejudiced his ability to pursue a nonfrivolous claim. In re Maxy,
674 F.3d 658, 660 (7th Cir. 2012)( to state an access claim, a
prisoner "must allege that some action by the prison has frustrated
or is impeding an attempt to bring a nonfrivolous legal claim.") If
Plaintiff is being represented by counsel in Plaintiff’s criminal
proceedings, that representation satisfies Plaintiff’s constitutional
right to access the court. U.S. v. Sykes, 614 F.3d 303, 311 (7th Cir.
2010).
Lastly, Plaintiff’s allegation that his property was stolen does
not state a constitutional claim because he has adequate state
court remedies available. See Tucker v. Williams, 682 F.3d 654 (7th
Cir. 2012)(state tort claims such as claims for conversion or
replevin are adequate remedies for wrongful confiscation of backhoe
by state investigator).
IT IS THEREFORE ORDERED:
1)
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states a Fourteenth
Amendment procedural due process claim arising from his
placement in segregation. This case proceeds solely on the claim
identified in this paragraph. Any additional claims shall not be
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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)
Plaintiff’s allegations regarding the lack of a law library,
the twisting of his arm, the lack of medical attention after the
twisting of his arm, and his stolen property are dismissed, without
prejudice, for failure to state a claim.
3)
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.
4)
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
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of service. After 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 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.
6)
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.
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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 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.
8)
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.
9)
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
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or phone number will result in dismissal of this lawsuit, with
prejudice.
10)
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).
11)
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.
12)
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.
13)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED:
11/02/2015
FOR THE COURT:
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s/James E. Shadid
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE
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