Lingle v. Kibby et al
Filing
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OPINION granting 35 Motion to Dismiss for Failure to State a Claim and 36 Motion to Dismiss for Failure to State a Claim. Thiscase is dismissed, with prejudice, for failure to state a claim. The clerk isdirected to enter judgment in favor of Defendants and against Plaintiff.This case is closed, parties to bear their own costs. Entered by Judge Sue E. Myerscough on 7/17/2012. (CT, ilcd)
E-FILED
Tuesday, 17 July, 2012 09:02:39 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
LAWRENCE LINGLE,
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Plaintiff,
v.
ALFREDA KIBBY, EUGENE
McADORY, and SHAN JUMPER,
Defendants.
11-CV-3101
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff proceeds pro se and is detained in the Rushville Treatment
and Detention Center pursuant to the Illinois Sexually Violent Persons
Act. On May 19, 2011, Judge Baker granted Plaintiff’s petition for leave
to proceed in forma pauperis, stating that “[t]he court cannot rule out a
constitutional claim regarding the alleged total ban on gaming and
electronic devices. The defendants may have a legitimate penological or
therapeutic reason for the ban, but the record must be developed before
that determination can be made.” (5/19/11 order). Defendants were
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served and discovery deadlines were set in August, 2011. The next
month the case was transferred to the undersigned.
On December 7, 2011 the Court revealed its concerns that Plaintiff
failed to state a federal claim and directed Defendants to file a motion to
dismiss. As this Court stated in that order, Judge Baker’s ruling arguably
only held that a claim could not be ruled out, and, in any event, prior
rulings may be reconsidered. Santamarina v. Sears, Roebuck & Co., 466
F.3d 570 (7th Cir. 2006)(law of case doctrine authorizes reconsideration
for compelling reasons). Additionally, since Plaintiff is proceeding in
forma pauperis, the Court must dismiss this case “at any time if the court
determines that . . . [the case] fails to state a claim on which relief may be
granted.” (emphasis added).
Defendants’ motion to dismiss is now before the Court. The Court
has not considered the attachments to the motion to dismiss. See Fed. R.
Civ. P. 12(d)(motion must be treated as one for summary judgment if
matters outside the pleadings are considered).
For the reasons already set forth in the Court’s December 7, 2011
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order the Court concludes that Plaintiff fails to state a federal claim for
relief. In sum, Plaintiff has no constitutional right to possess a video
gaming system. No constitutionally protected property interest exists
and any First Amendment right is overridden by legitimate security
concerns. (12/7/11 Order, pp. 4-5)(citing this Court’s 10/11/11 order in
Schloss v. Ashby, 11-CV-3337). Plaintiff may assail the legitimacy of the
security concerns and the fairness of the decision, but substantial
deference must be afforded Defendants in making that call. Id. at p. 6.
No equal protection claim lies because Plaintiff is not similarly situated
to patients in mental health facilities. Id.
Plaintiff asserts in his response that the gaming ban was
implemented to deter him from filing lawsuits. However, Plaintiff alleged
in his Complaint that, “[a]lthough I am not personally involved in any
other Federal Litigation against the Defendants in this case as it relates to
media, I have been made aware of other Law Suits by staff complaints
concerning those that have brought them . . . .” (Complaint, ¶ 6, d/e 1).
Thus, he admits that he had no lawsuit pending when the gaming ban
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was implemented, and no plausible inference arises that the
implementation of the ban hindered or discouraged him from filing any
meritorious claims.
IT IS THEREFORE ORDERED:
1) Defendants’ motions to dismiss are granted (d/e’s 35, 36). This
case is dismissed, with prejudice, for failure to state a claim. The clerk is
directed to enter judgment in favor of Defendants and against Plaintiff.
This case is closed, parties to bear their own costs.
2.
If Plaintiff wishes to appeal this dismissal, he must file a
notice of appeal with this court within 30 days of the entry of judgment.
Fed. R. App. P. 4(a). A motion for leave to appeal in forma pauperis
should set forth the issues Plaintiff plans to present on appeal. See Fed.
R. App. P. 24(a)(1)(C).
ENTERED: July 17, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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