Shepard v. Godinas et al
Filing
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MERIT REVIEW OPINION: Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states constitutional claims for placing him at or refusing to remove him from a substantial risk of serious harm from as sault, attempting to push Plaintiff's face and head into a glass window without justification, retaliation for Plaintiff's resistance to allowing his head to be slammed into a glass wall and possibly for Plaintiff's complaints and grie vances, excessive restraints during Plaintiff's stay at the hospital, and cruel and unusual punishment for forcing Plaintiff to stand with his head down and bent over for two hours during the cadet training. The Clerk is to attempt service on D efendants 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 4/29/2016. (MJ, ilcd)
E-FILED
Friday, 29 April, 2016 03:15:12 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MILTON SHEPARD,
Plaintiff,
v.
ANTONIO GODINEZ,1 et al.,
Defendants.
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16-CV-2087
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in the Illinois River
Correctional Center regarding incidents which occurred during Plaintiff’s
incarceration in the Danville Correctional Center in 2014. 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.2 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).
However, conclusory statements and labels are insufficient. Enough
facts must be provided to "'state a claim for relief that is plausible on its
1
Plaintiff spells this name “Godinas,” but the correct spelling is “Godinez.”
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).
2
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face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th Cir. 2013)(quoted cite
omitted).
Allegations
Plaintiff alleges that, during a cadet training shake down exercise
in 2014 in Danville Correctional Center, he was made to stand bent over
with his head down for about two hours. Plaintiff was unable to hold
this position to an officer’s satisfaction, whereupon the unidentified
officer tried to forcefully push Plaintiff’s face or head into a glass window,
but Plaintiff resisted. Eventually, Plaintiff was escorted back to his cell.
A few weeks later, Plaintiff received a new cellmate, inmate Pelts,
allegedly in retaliation for Plaintiff’s resistance during the training
exercise. Inmate Pelts was a member of the black stones gang. Plaintiff
used to be a black stones gang member but switched allegiance to the
gangster disciples and then ultimately renounced gangs while in prison.
Additionally, the victim in Plaintiff’s criminal case had been a black
stones gang member. Defendant Campbell was aware of this information
before Pelts was transferred to Plaintiff’s cell. At the time Pelts became
Plaintiff’s roommate, Plaintiff had recently been approved to be
transferred to a minimum security prison.
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Pelts assaulted Plaintiff, inflicting serious injuries to Plaintiff’s face.
Plaintiff was left unconscious in his cell for more than 20 minutes. Once
aid did arrive, Plaintiff was taken to the hospital where he was
handcuffed and shackled by leg to the bed for at least two days despite
the presence of a guard. The cuffs were so tight that Plaintiff suffered
scars and the nurse complained.
When Plaintiff returned to Danville, he was charged with and found
guilty of fighting. His planned transfer to the minimum security prison
was revoked. Meanwhile, another inmate whom Plaintiff believed was
integral to the attack on Plaintiff was moved closer to Plaintiff’s cell, and
a different inmate began “randomly punching, kicking, and threatening
the plaintiff.” (Compl. para. 65.) Plaintiff’s efforts to obtain help were
unavailing. Plaintiff was transferred to a medium security prison, even
though his discipline had been expunged as unsubstantiated.
Analysis
Plaintiff states constitutional claims for allegedly placing him at or
refusing to remove him from a substantial risk of serious harm from
assault, attempting to push Plaintiff’s face and head into a glass window
without justification, retaliation for Plaintiff’s resistance to allowing his
head to be slammed into a glass window and possibly for Plaintiff’s
complaints and grievances, excessive restraints during Plaintiff’s stay at
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the hospital, and cruel and unusual punishment for forcing Plaintiff to
stand with his head down and bent over for two hours during the cadet
training. Whether Plaintiff has named the individuals personally
responsible for these violations will await a more developed record.
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 constitutional claims for
placing him at or refusing to remove him from a substantial risk of
serious harm from assault, attempting to push Plaintiff’s face and head
into a glass window without justification, retaliation for Plaintiff’s
resistance to allowing his head to be slammed into a glass wall and
possibly for Plaintiff’s complaints and grievances, excessive restraints
during Plaintiff’s stay at the hospital, and cruel and unusual punishment
for forcing Plaintiff to stand with his head down and bent over for two
hours during the cadet training. This case proceeds solely on the claims
identified in this paragraph. 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. 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
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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 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.
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.
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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 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.
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 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.
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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)
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).
10)
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.
11)
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.
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12)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability and
Accountability Act.
ENTERED: April 29, 2016
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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