Bey v. Strayer et al
Filing
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OPINION entered by Judge Sue E. Myerscough on 10/12/2011. The merit review scheduled for 10/17/2011 is cancelled. The Plaintiff's Complaint is dismissed without prejudice to refiling an amended complaint by 11/4/2011. If the Plaintiff does not file an amended complaint by 11/4/2011, this case will be dismissed without prejudice. (MAS, ilcd)
E-FILED
Wednesday, 12 October, 2011 03:45:13 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
CLYDE WALLACE BEY,
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Plaintiff,
v.
WILLIAM STRAYER et al.,
Defendants.
11-CV-3206
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff Clyde Wallace Bey is proceeding pro se and is currently
incarcerated in Sangamon County Jail (the “Jail”). His complaint is
before the Court for a merit review pursuant to 28 U.S.C. § 1915A.
Plaintiff’s complaint improperly joins many unrelated incidents at
the Jail involving many different defendants. The only common thread
appears to be that all of the incidents happened at the Jail. For example,
Plaintiff alleges that he was assaulted on different occasions by different
defendants over the span of months; that other defendants have written
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him false disciplinary reports; that he has been punished unjustly; that
the law librarian denied him access to the law library; that the doctor
refused to give him prescribed pain medicine for a broken hand; that he
is required to wear cuffs and shackles when out of his cell; that he has
been denied commissary; and that a white detainee received a bed in the
medical unit before Plaintiff.
Fed. R. Civ. P. 20(a)(2) states in relevant part that “[p]ersons . . .
may be joined in one action as defendants if: (A) any right to relief is
asserted against them jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any question of law or fact common
to all defendants will arise in the action.” See George v. Smith, 507 F.3d
607 (7th Cir. 2007)(“A buckshot complaint that would be rejected if
filed by a free person—say, a suit complaining that A defrauded the
plaintiff, B defamed him, C punched him, D failed to pay a debt, and E
infringed his copyright, all in different transactions—should be rejected if
filed by a prisoner.”). Plaintiff alleges that all the adverse incidents he
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experienced at the Jail were motivated by retaliation, presumably for his
various complaints and grievances, but these allegations are too vague to
allow a plausible inference that all of these separate incidents and
defendants are connected by the same retaliatory motive. EEOC v.
Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007)(factual
“allegations must plausibly suggest that the plaintiff has a right to relief,
raising that possibility above a ‘speculative level.’”)(quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). If Plaintiff wishes to
pursue claims for all these unrelated incidents against different
defendants, he will need to pursue different lawsuits and have the $350
filing fee assessed for each lawsuit.
The Court will accordingly dismiss this complaint and give Plaintiff
an opportunity to file an amended complaint.
For Plaintiff’s benefit, the Court can discern one federal claim from
the current complaint—the excessive force claim against Defendant Brian
Carey based on an incident that occurred on September 30, 2010. There
may also be a separate excessive force claim against Defendant Ferro, for
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an unspecified incident in December, 2010, but there are not enough
facts alleged to make this determination.
A separate, unrelated claim against Dr. Lochard may also exist
regarding the denial of prescribed pain medicine after Plaintiff broke his
hand, but it is difficult to tell since Plaintiff did receive surgery on his
hand and did receive alternative pain medicine, though the substituted
medicine upset his stomach. Plaintiff is advised that medical negligence
does not state a federal claim, Chapman v. Keltner, 241 F.3d 842, 845
(7th Cir. 2001), and it is difficult to conclude from the allegations that
Dr. Lochard might have been deliberately indifferent to Plaintiff’s need
for pain medicine. Deliberate indifference requires personal knowledge of
an inmate’s serious medical need and an intentional or reckless disregard
of that need. McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010).
Plaintiff also challenges his segregation, but segregation of a pretrial
detainee for medical and administrative reasons does not violate the
constitution. Higgs v. Carver, 286 F.3d 437, 438 (7th Cir. 2002)(placing
detainee in segregation not as punishment but for “managerial reasons"
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such as lack of space or to protect jail staff does not violate detainee’s due
process rights). Similarly, Plaintiff’s challenge to the shackles and
handcuffs he must wear does not state a claim if the restraints are
necessary to control Plaintiff or to protect others. And, general
harassment by officers or the denial of privileges like trips to the
commissary do not alone amount to the kind of objectively serious
deprivations that might be actionable under the Constitution. Sain v.
Wood, 512 F.3d 886 (7th Cir. 2008)(committed person entitled to
"humane conditions" and the provision of "adequate food, clothing,
shelter, and medical care"). Lastly, denials of library access alone do not
state a constitutional claim. To state a claim of denial of access to the
court, Plaintiff must allege facts showing that he suffered concrete injury
in a nonfrivolous case. Lewis v. Casey, 518 U.S. 343, 351 (1996).
The Court makes these comments so that Plaintiff is aware that
many of his allegations do not appear to state a federal claim for relief.
At this point the only federal claim the Court can confidently discern is
the excessive force claim against Defendant Brian Carey. Plaintiff should
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therefore carefully consider whether he states a federal claim before he
files additional lawsuits. Plaintiff will be assessed the $350 filing fee for
each lawsuit filed, even if the lawsuit is dismissed for failure to state a
claim. Additionally, Plaintiff will incur a “strike” under 28 U.S.C. §
1915(g) if his case is dismissed for failure to state a claim. Section
1915(g) bars a prisoner from proceeding in forma pauperis if he or she
has had three prior cases dismissed as frivolous, malicious, or for failure
to state a claim.
IT IS THEREFORE ORDERED:
1.
Plaintiff’s complaint is dismissed without prejudice to refiling an
amended complaint by November 4, 2011. The amended
complaint must include only allegations arising out of the same
occurrences or series of occurrences against the defendants who
were involved in those occurrences.
2.
If the amended complaint states claims not properly joined, the
court will sever those claims into new cases and will assess an
additional filing fee for each new case.
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3.
If Plaintiff does not file an amended complaint by November 4,
2011, this case will be dismissed without prejudice.
4.
The merit review scheduled for October 17, 2011, is cancelled. The
clerk is directed to notify the Jail of the cancellation.
ENTERED:
October 12, 2011
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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