Dorsey v. Webb
Filing
5
OPINION entered by Judge Sue E. Myerscough on 4/10/2013. The merit review scheduled for 4/15/2013 is cancelled. This cause is set for further schedulin g procedures under Fed. R. Civ. P. 16 on 6/24/2013 at 1:30 p.m., or as soon as the Court can re ach the case, before Judge Sue E Myerscough by telephone conference. The conference will be cancelled if service has been accomplished and no pending issues need discussion. Accordingly, no writ shall issue for Plaintiff's presence unless directed by the Court. (MAS, ilcd)
E-FILED
Wednesday, 10 April, 2013 02:42:10 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JERMARI DORSEY,
Plaintiff,
v.
CORRECTIONAL
OFFICER WEBB,
Defendants.
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13-CV-3049
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and incarcerated in Logan
Correctional Center, seeks leave to proceed in forma pauperis. The
case is before the Court for a merit review pursuant to 28 U.S.C. §
1915A.
LEGAL STANDARD
The Court is required by § 1915A to review a Complaint filed by a
prisoner against a governmental entity or officer and, through such
process, to identify cognizable claims, dismissing any claim that is
“frivolous, malicious, or fails to state a claim upon which relief may
be granted.” A hearing is held if necessary to assist the Court in
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this review, but, in this case, the Court concludes that no hearing is
necessary. The Complaint and its attachments are clear enough on
their own for this Court to perform its merit review of Plaintiff’s
Complaint.
The review standard under § 1915A is the same as the notice
pleading standard under Federal Rule of Civil Procedure 12(b)(6).
Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). 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,
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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).
ANALYSIS
Plaintiff alleges that Correctional Officer Webb ordered Plaintiff to
mix and spray pesticides and fertilizer without any protective gear
and in an enclosed area lacking ventilation. This occurred three
times per week for three months, despite Plaintiff's protests and
requests for protective gear. After three months Plaintiff allegedly
had a seizure while spraying fertilizer. Plaintiff believes that his
unprotected exposure to the chemicals caused the seizure and also
put him at a substantial risk of serious harm.
The Court concludes that Plaintiff arguably states an Eighth
Amendment claim against Defendant Webb. Liberally construing
Plaintiff's allegations, Defendant Webb was personally aware of
deliberately disregarded a substantial risk of serious harm
presented to Plaintiff from unprotected and repeated exposure to
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pesticides and fertilizer in an enclosed area. The case will
accordingly proceed on this claim.
IT IS THEREFORE ORDERED:
1)
The merit review scheduled for April 15, 2013 is cancelled.
The clerk is directed to notify Plaintiff’s prison of the cancellation.
2)
Pursuant to its merit review of the Complaint under 28 U.S.C.
§ 1915A, the Court finds that Plaintiff states an Eighth Amendment
claim that Defendant Webb was deliberately indifferent to a
substantial risk of serious harm to Plaintiff. 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)
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 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).
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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 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 be to the issues and
claims stated in this Opinion.
6)
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 the 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 shall be stricken by the Court.
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7)
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.
8)
This cause is set for further scheduling procedures under Fed.
R. Civ. P. 16 on June 24, 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 telephone conference. The conference will be
cancelled if service has been accomplished and no pending issues
need discussion. Accordingly, no writ shall issue for Plaintiff’s
presence unless directed by the Court.
9)
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.
10)
Plaintiff shall immediately notify the Court, in writing, of any
change in his mailing address and telephone number. Plaintiff's
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failure to notify the Court of a change in mailing address or phone
number will result in dismissal of this lawsuit, with prejudice.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO
send to each Defendant pursuant to this District's internal
procedures: 1) a Notice of Lawsuit and Request for Waiver of
Service; 2) a Waiver of Service; 3) a copy of the Complaint; and, 4)
this order.
ENTERED: April 10, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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