Hydron v. Hougas et al
Filing
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OPINION (See Written Opinion): The hearing scheduled for January 14, 2013, is cancelled. The Clerk is directed to notify Plaintiff's detention facility of the cancellation. This cause is set for further scheduling procedures under Fed. R. Civ. P. 16 on April 15, 2013 at 1:30 p.m. before U.S. District Judge Sue E. Myerscough by video conference. Entered by Judge Sue E. Myerscough on 01/02/2013. (VM, ilcd)
E-FILED
Wednesday, 02 January, 2013 03:59:06 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
KYLE HENDRON,
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Plaintiffs,
v.
S. HOUGAS, et al.,
Defendants.
12-CV-3328
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff is detained in the Rushville Treatment and Detention Center pursuant
to the Illinois Sexually Violent Persons Act. He seeks leave to proceed in forma
pauperis.
The “privilege to proceed without posting security for costs and fees is
reserved to the many truly impoverished litigants who, within the District Court's
sound discretion, would remain without legal remedy if such privilege were not
afforded to them.” Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th
Cir. 1972). Additionally, a court must dismiss cases proceeding in forma pauperis
“at any time” if the action is frivolous, malicious, or fails to state a claim, even if
part of the filing fee has been paid. 28 U.S.C. § 1915(d)(2). Accordingly, this
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Court grants leave to proceed in forma pauperis only if the complaint states a
federal claim. A hearing was scheduled to assist in this review, but the hearing
will be cancelled as unnecessary.
LEGAL STANDARD
To state a claim, the allegations must set forth a “short and plain statement
of the claim showing that the pleader is entitled to relief .” Fed. R. Civ. P. 8(a)(2).
Factual allegations must give enough detail to give “‘fair notice of what the . . .
claim is and the grounds upon which it rests.’” EEOC v. Concentra Health Serv.,
Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007))(add’l citation omitted). The factual “allegations must
plausibly suggest that the plaintiff has a right to relief, raising that possibility
above a ‘speculative level.’” Id. (quoting Bell Atlantic, 550 U.S. at 555). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged . . . . Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009)(citing Bell Atlantic, 550 U.S. at 555-56). However, pro se pleadings
are liberally construed when applying this standard. Bridges v. Gilbert, 557 F.3d
541, 546 (7th Cir. 2009).
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ALLEGATIONS
Plaintiff is detained in the Rushville Treatment and Detention Center
pursuant to the Illinois Sexually Violent Persons Act.
Plaintiff alleges that, on August 21, 2012 he was brought to a meeting to
attempt to resolve a grievance Plaintiff had filed. The conversation did not go
well—Defendant Bierman allegedly repeatedly interrupted Plaintiff, telling
Plaintiff that Bierman’s staff could do anything they pleased and calling Plaintiff
derogatory names.
Plaintiff was allegedly forcefully dragged from the meeting. Though
Plaintiff was not resisting, he was kneed in the head, yanked, shoved, dragged
down the hall, and his head was slammed into the wall several times. Plaintiff’s
requests to see a doctor were denied for over a month.
ANALYSIS
Plaintiff’s claims arise under the Fourteenth Amendment's due process
clause, not the Eighth Amendment's prohibition against cruel and unusual
punishment. The exact legal standard for an excessive force claim under the due
process clause is subject to reasonable debate. See Forrest v. Prine, 620 F.3d 739,
744 (7th Cir. 2010)("The Fourteenth Amendment right to due process provides at
least as much, and probably more, protection against punishment as does the
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Eighth Amendment's ban on cruel and unusual punishment."); Lewis v. Downey,
581 F.3d 467, 474 (7th Cir. 2009)(in an excessive force claim, due process clause
prohibits all "punishment," providing "broader protection" than the Eighth
Amendment, "[a]lthough the exact contours of any additional safeguards remain
undefined . . . ."). However, the debate is irrelevant at this point, since Plaintiff
clearly states an excessive force claim under even the Eighth Amendment. See
Hudson v. McMillian, 503 U.S. 1, 5 (1992)(Excessive force is force applied
"maliciously and sadistically to cause harm," as opposed to force applied "in a
good-faith effort to maintain or restore discipline."). Plaintiff also states an
arguable claim against Defendants for deliberate indifference to Plaintiff’s serious
medical needs by allegedly interfering with Plaintiff’s access to a physician, as
well as a failure to intervene claim against the Defendants who witnessed yet failed
to stop the excessive force.
IT IS THEREFORE ORDERED:
1) The hearing scheduled for January 14, 2013, is cancelled. The clerk is
directed to notify Plaintiff’s detention facility of the cancellation.
2) Pursuant to its review of the Complaint, the Court finds that Plaintiff
states the following federal claims: excessive force, failure to intervene, and
deliberate indifference to serious medical needs. Plaintiff’s petition to proceed in
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forma pauperis is accordingly granted (d/e 2). 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.
3) The Clerk is directed to attempt service of the Complaint and this order on
each Defendant pursuant to this District's internal procedures for Rushville cases.
4) If a Defendant 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 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).
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 that Defendant's current work address, or, if not known, that
Defendant's forwarding address. This information shall be used only for effecting
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 the time prescribed by Local Rule.
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
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be to the issues and claims stated in this Opinion.
7) Plaintiff shall serve upon any Defendant who has been served but who is
not represented by counsel a copy of every filing submitted by Plaintiff for
consideration by the Court, and shall also file a certificate of service stating the
date on which said copy was mailed. Any paper received by a District Judge or
Magistrate Judge that has not been filed with the Clerk or that fails to include a
required certificate of service will be stricken by the Court.
8) Once counsel has appeared for a Defendant, Plaintiff need not send copies
of his filings to that Defendant or to that Defendant's counsel. Instead, the Clerk
will file Plaintiff's document electronically and send a notice of electronic filing to
defense counsel. The notice of electronic filing shall constitute service on
Defendants pursuant to Local Rule 5.3. If electronic service on Defendants is not
available, Plaintiff will be notified and instructed accordingly.
9) This cause is set for further scheduling procedures under Fed. R. Civ. P.
16 on April 15, 2013 at 1:30 p.m. (or as soon as the Court can reach the case)
before U. S. District Judge Sue E. Myerscough by video conference. The
conference will be cancelled if all Defendants have been served and no pending
issues need discussion. Accordingly, no writ shall issue to secure Plaintiff’s
presence at the conference unless directed by the Court in a separate order.
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10) Counsel for Defendants is hereby granted leave to depose Plaintiff at his
place of confinement. Counsel for Defendants shall arrange the time for the
depositions.
11) Plaintiff shall immediately notify the court of any change in their
mailing addresses and telephone numbers. Failure to notify the Court of a change
in mailing address or phone number will result in dismissal of this lawsuit, with
prejudice.
ENTERED: January 2, 2013
FOR THE COURT:
S/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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