Widmer v. Doran et al

Filing 5

MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 5/25/2017. Pursuant to its merit review of the Complaint under 28 U.S.C. §1915A, the Court finds that the Plaintiff states claims against Defendants Doran (in his official and individual capacities) and Defendant Bruens. Ford County added as a defendant. Defendants Sherfey; Cornett; Harrison; Keenan; Weidner; Clark; Woodmansee; Ward; Miller; Williams; Mobley; Tardiff; Sloan; McGiness; Bane; Cornett and Ryan are dismissed, without prejudice. HIPAA Order to enter. This case is now in the process of service. Rule 16 Deadline 7/24/2017. (MAS, ilcd)

E-FILED

Thursday, 25 May, 2017 04:02:47 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MIKE WIDMER,
Plaintiff,
v.
SHERIFF MARK DORAN, et al.,
Defendants.

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17-CV-2113

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his detention in the Ford 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). However,
conclusory statements and labels are insufficient. Enough facts

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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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
Drawing from the complaint and its attachments, Plaintiff
alleges that he is being detained in the Ford County Jail on a felony
charge of intimidation based on a Facebook post. He asserts that
he did not make the post and that the post did not mention the
alleged victim’s name. He seems to allege that he was arrested
without probable cause and that a police officer offered a false
affidavit to secure a search warrant for the home of Plaintiff’s
brother and perhaps Plaintiff’s home as well. Neither search turned
up evidence to support the charge. Plaintiff is being detained in the
Jail on a one million dollar bond.
Plaintiff alleges that he entered the Jail with two recently
broken teeth which “were shoved into his skull” along with three
abscessed teeth. Both a dentist and an oral surgeon have allegedly
recommended that Plaintiff have the five teeth promptly removed.
The dentist allegedly told Plaintiff that Plaintiff’s vision could be
permanently lost if the teeth are not removed. The oral surgery was
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not scheduled because Plaintiff’s Medicare would not cover the
surgery. Thus, Plaintiff remains in Jail with the abscessed teeth
and is no longer being provided antibiotics. Plaintiff appears to
allege that he is being denied necessary treatment because the Jail
will not cover the costs.
Further, Plaintiff alleges that he has been denied necessary
mental health treatment for a mental health breakdown because of
the Jail’s policy of employing only one mental health professional
for four hours per week. Plaintiff also alleges that newspapers and
magazines mailed to him are kept from him because of a Jail policy
and that he cannot send out legal mail unless he has money in his
account.
Discussion
Plaintiff cannot challenge what is happening in his ongoing
criminal proceedings in this case to the extent he is trying to do so.
The place to make that challenge is in Plaintiff’s criminal case.
Simpson v. Rowan, 73 F.3d 134, 137 (7th Cir. 1995)(“In Younger,
the Supreme Court held that absent extraordinary circumstances
federal courts should abstain from enjoining ongoing state criminal
proceedings.”) Additionally, prosecutors are absolutely immune
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from civil liability for pursuing criminal charges in court, and
judges are absolutely immune from civil liability for their decisions
in court. Imbler v. Pachtman, 424 U.S. 409, 431 (1976)("in initiating
a prosecution and in presenting the State's case, the prosecutor is
immune from a civil suit for damages under section 1983."); Polzin
v. Gage, 636 F.3d 834, 838 (7th Cir. 2011)( “A judge has absolute
immunity for any judicial actions unless the judge acted in the
absence of all jurisdiction.”).
If Plaintiff is pursuing a claim for arrest without probable
cause, that claim might be able to proceed in a civil action while the
criminal case is pending, but Plaintiff does not offer enough facts to
determine whether he states a claim for false arrest. “Probable
cause to make an arrest exists when a reasonable person
confronted with the sum total of the facts known to the officer at
the time of the arrest would conclude that the person arrested has
committed, is committing, or is about to commit a crime.” Venson v.
Altamirano, 749 F.3d 641, 649 (7th Cir.2014). For example,
Plaintiff does not state whether an arrest warrant had issued,
whether the victim had complained to police, what the Facebook
post stated, whether the post was on Plaintiff’s Facebook page, and
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whether the post appeared to be authored by Plaintiff. Similarly, if
Plaintiff is contending that the search warrant that issued for his
home was based on false statements by police, he does not explain
what statements were made in the affidavit for the search warrant
that were false.2
In any event, claims arising from Plaintiff’s arrest and the
search of his home would not be properly joined with his claims
regarding the incidents at the Jail because the occurrences are
unrelated and against different Defendants. George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007)(“Unrelated claims against
different defendants belong in different suits . . .”). Plaintiff’s claims
regarding his arrest and the search will be dismissed without
prejudice to refiling as a separate action and paying a separate
filing fee. In order to avoid a strike under 28 U.S.C. § 1915(g),
Plaintiff should carefully consider, before filing a separate action,
whether he can allege facts to plausibly state a federal claim based
on the arrest and search.
Plaintiff clearly states a claim for deliberate indifference to his
serious dental, medical, and mental health needs at the Jail.

2

 Plaintiff mentions the false affidavit with regard to the search of his brother’s home, but Plaintiff cannot pursue 
an action on his brother’s behalf based on the search of his brother’s home. 

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However, he names 16 defendants on these claims. Only the
individuals who are personally responsible for denying Plaintiff care
can be liable. Personally responsible means that an individual
knows about the problem and has the authority to do something to
fix the problem. The correctional officers named as Defendants
would not have control over what treatment services the Jail
provides, but the administrators arguably would. These claims will
proceed against Sheriff Doran and Jail Administrator Stacy Bruens
at this point. Similarly, Plaintiff’s claims about his legal mail,
newspapers, and magazines are systemic challenges to Jail policy
and will proceed against Sheriff Doran and Jail Administrator Stacy
Bruens at this point. Ford County will be added for purposes of
indemnification and to cover the possibility that the alleged policies
are attributable to the County.
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 the following
claims against Defendants Doran (in his official and individual
capacities) and Defendant Bruens: (1) Fourteenth Amendment due
process claim for deliberate indifference to Plaintiff’s serious
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medical, dental, and mental health needs; and, (2) First
Amendment claim based on the Jail’s policies regarding
newspapers, magazines, and legal mail. 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)

Plaintiff’s claims arising from his arrest and the search of

his home are dismissed, without prejudice, for failure to state a
claim and as improperly joined with the claims proceeding in this
case.
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
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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.
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
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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 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.

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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
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 add Ford County as a

Defendant.
13)

Defendants Sherfey; Cornett; Harrison; Keenan;

Weidner; Clark; Woodmansee; Ward; Miller; Williams; Mobley;
Tardiff; Sloan; McGiness; Bane; Cornett and Ryan are

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dismissed, without prejudice. The clerk is directed to
terminate these Defendants.
14)

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 the remaining Defendants pursuant to the standard
procedures.
15)

The Clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED:

May 25, 2017

FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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