Thompson v. Bukowki et al

Filing 7

MERIT REVIEW OPINION (Rule 16 Deadline 11/20/2017.): This case will proceed for service pursuant to the standard procedures. Plaintiff's motion for the Court to appoint counsel is denied 6 , with leave to renew on a more developed record. 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 WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 9/19/2017. (ME, ilcd)

E-FILED

Tuesday, 19 September, 2017 03:20:19 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
WALTER THOMPSON,
Plaintiff,
v.
SHERIFF TIMOTHY BUKOWSKI,
et al.
Defendants.

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17-CV-2169

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in the
Metropolitan Correctional Center in Chicago. 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

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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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 face.'" Alexander v. U.S., 721
F.3d 418, 422 (7th Cir. 2013)(quoted cite omitted).
Plaintiff alleges that during his detention in the Jerome Combs
Detention Center, the manner in which he and other detainees were
transported was inhumane and dangerous. Passengers must sit on
small, steel benches with no anal or back support, shackled and
unbuckled. Plaintiff experienced hemorrhoid and back pain, as well
as anal bleeding. Defendants allegedly denied Plaintiff requests for
a pillow or some other solution to make the transport bearable and
safe.
Plaintiff filed this claim before in case 16-cv-2390 (C.D. Ill.).
The Court in that case concluded that Plaintiff did state a due
process claim but that the claim was improperly joined and should
be filed as a separate case. Plaintiff then filed the claim in this new
lawsuit.
This Court agrees that Plaintiff states a constitutional claim or
claims based on the conditions during his transport in the van.

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This case will proceed for service pursuant to the standard
procedures.
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 constitutional
claim or claims based on the manner in which Plaintiff was
transported from Jerome Combs Detention Center to court hearings
and other destinations.

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 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.

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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.
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
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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)

Plaintiff’s motion for the Court to appoint counsel is

denied (6), with leave to renew on a more developed record. The
Court does not have the authority to order an attorney to accept pro
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bono appointment on a civil case such as this. Pruitt v. Mote, 503
F.3d 647, 653 (7th Cir. 2007). The most the Court can do is ask for
volunteer counsel. In determining whether the Court should
attempt to find an attorney to voluntarily take the case, the
question is “given the difficulty of the case, does the plaintiff appear
competent to litigate it himself?" Pruitt, 503 F.3d at 654-55 (7th
Cir. 2007). On this record, Plaintiff appears competent to proceed
pro se. His pleadings are relatively well written and adequately
convey the factual basis for his claims. He already has personal
knowledge of many of the relevant facts underlying his claims. He
experienced the transports personally and knows what efforts he
made to obtain help. Plaintiff asserts that he will not be able to
contact witnesses who experienced the same transport issues.
However, Plaintiff has already a filed a list of many of those persons,
and he can send a discovery request to defense counsel asking if
any of those individuals are still detained in Jerome Combs. If so,
Plaintiff may file a motion to send written questions to those
individuals and see if they respond.
12)

The clerk is directed to enter the standard order

granting Plaintiff's in forma pauperis petition and assessing an
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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: 9/19/2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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