Walker v. Pennock et al
Filing
14
OPINION entered by Judge Sue E. Myerscough on 11/18/2013. Plaintiff's petition to proceed in forma pauperis is granted due to Plaintiff's indigency, d/e 3 . However, Plaintiff's amended complaint is dismissed because Plaintiff fails to state a claim for federal relief and because his federal claims are barred by the two-year statute of limitations. If Plaintiff is currently being denied sex offender treatment, Plaintiff may file an amended complaint by December 1, 2013, setting forth Plaintiff's efforts to obtain treatment and Defendants' responses. Plaintiff's motion to file a supplemental pleading is denied, d/e 10 as unnecessary. (MAS, ilcd)
E-FILED
Monday, 18 November, 2013 12:22:11 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
FRANKIE N. WALKER, SR.,
Plaintiff,
v.
WANDA PENNOCK, et al.,
Defendants.
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13-CV-3079
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and detained in the Rushville
Treatment and Detention Center, 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.
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§ 1915(d)(2). Accordingly, this 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.
In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, --- F.3d ---, 2013 WL 3336713 * 2 (7th Cir.
2103). 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., 2013 WL 3215667 *2 (7th
Cir. 2013).
Plaintiff alleges that he was required to take and pass two
polygraphs in order to remain in sex offender therapy treatment at
the Rushville Treatment and Detention Center. According to
Plaintiff, no other similarly situated residents were required to pass
two polygraph exams in order to remain in treatment.
Plaintiff passed the first polygraph exam in December 2009.
However, Plaintiff failed to second polygraph exam in March 2010.
Plaintiff appealed the March finding by attempting to mail an appeal
by certified mail. Defendant Pennock, a mailroom employee at the
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time, allegedly initially refused to send Plaintiff's appeal by certified
mail. However, Plaintiff eventually did receive a receipt showing
that the appeal had been delivered by certified mail on August 10,
2013. (Compl. Ex. C9). In June, 2011, Defendant Jumper wrote
Plaintiff that Plaintiff's appeal was untimely but that the committee
would allow Plaintiff to pursue his appeal anyway. (Compl. Ex. B8).
Plaintiff has filed motions in his sexually violent proceedings in
state court to obtain the data underlying the March polygraph. The
state court has ordered at least some of that documentation to be
produced. (Compl. Ex. L, 11/20/12 letter from Assistant Attorney
General).
In June 2010, Plaintiff withdrew his consent for treatment
based on the unfair polygraph test and also based on Defendant
Oberhausen's approach to leading the group therapy.
Oberhausen's therapy style allegedly resulted in adversarial,
unhealthy, and unproductive group sessions. In addition to
allowing a hostile environment, Oberhausen also allegedly required
Plaintiff to say and think what Oberhausen wanted Plaintiff to say
and think before Plaintiff could progress in treatment.
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Plaintiff filed complaints with the U.S. Postal Service and the
Schuler County Sheriff's Office regarding what Plaintiff perceived as
Defendant Pennock's intentional mishandling and interference with
Plaintiff's attempt to mail his polygraph appeal by certified mail.
Defendant Pennock allegedly refused to notarize the complaint
against herself and initially refused to mail out the complaint.
Plaintiff also filed a grievance with the Illinois Polygraph Society.
Neither the Sheriff's Office nor the Postal Service took any action
against Pennock. (Compl. Ex 9, 1/4/11 letter from postal
inspector). Whether the Polygraph Society responded to the merits
of Plaintiff's complaints is unclear, but the Society did ask for more
information.
Plaintiff filed this lawsuit on April 1, 2013, and an amended
complaint on April 15, 2013. Plaintiff asks this Court to expunge
the results of the March 2010 polygraph, award punitive and
compensatory damages, and modify the mail procedures at the
facility.
ANALYSIS
Plaintiff's federal claims arise under 42 U.S.C. § 1983, which
borrows Illinois' two-year statute of limitations. Woods v. Illinois
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Dept. of Children and Family Serv., 710 F.3d 762, 768 (7th Cir.
2013)("To sum up, we reiterate our holding that the limitations
period applicable to all § 1983 claims brought in Illinois is two
years, . . . ."). That means that Plaintiff had two years from the
accrual of his federal claims to file a lawsuit. The statute of
limitations is an affirmative defense which must be pled and proved
by the defendant, but dismissal at this stage is appropriate if the
defense is plainly obvious from Plaintiff's own allegations. See
Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002)(“[W]hen
the existence of a valid affirmative defense is so plain from the face
of the complaint that the suit can be regarded as frivolous, the
district judge need not wait for an answer before dismissing the
suit.”).
Plaintiff's federal claims accrued when he knew of his injury
and had the ability to file a lawsuit about the injury. Savory v.
Lyons, 469 F.3d 667, 672 (7th Cir. 2006)("'First, a court must
identify the injury. Next, it must determine the date on which the
plaintiff could have sued for that injury.' . . . That is the date the
plaintiff knew or should have known that his constitutional rights
had been violated.")(quoted cite omitted).
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Plaintiff's alleged unfair polygraph test occurred in March,
2010. Plaintiff withdrew his consent to treatment in June, 2010,
both events occurring about three years before filing this lawsuit in
April, 2013. To the extent Plaintiff states a federal claim arising
from those events, the claim is clearly barred by the statute of
limitations, by Plaintiff's own allegations.
Similarly, Plaintiff's claim arising from Defendant Pennock's
temporary delay in sending mail, certified or otherwise, arose in the
Fall of 2010, also outside the two-year statute of limitations even if
the allegations state a claim, see Schroeder v. Drankiewicz, 2013
WL 1222750 (7th Cir. 2013)(no First Amendment violation for twomonth delay in permitting prisoner to send birthday cards to
daughters)(unpublished, collecting cases)(attached to this order).
No federal claim is stated based on the refusal of the Post
Office or the Sheriff's Office to properly investigate and take action
on Plaintiff's complaints, regardless of when those events occurred.
Whitlock v. Brueggemann, 682 F.3d 567, 589 (7th Cir. 2012)("There
is no affirmative duty on police to investigate.").
Lastly, this Court cannot invalidate Plaintiff's polygraph
results. If Plaintiff seeks to challenge the reliability of those results,
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he has at least two avenues available: 1) the internal appeal within
the facility, which Plaintiff was allowed to pursue; and 2) a motion
in Plaintiff's sexually violent proceedings in state court, which
Plaintiff is also pursuing.
Plaintiff's amended complaint therefore must be dismissed.
However, Plaintiff will be given leave to file an amended complaint
to the extent Plaintiff seeks to challenge a current refusal to allow
him back into sex offender treatment. Plaintiff does not appear to
be making this claim, but the Court is unsure enough to allow the
opportunity for amendment.
IT IS THEREFORE ORDERED:
1.
Plaintiff’s petition to proceed in forma pauperis is granted
due to Plaintiff's indigency (d/e 3). However, Plaintiff's amended
complaint is dismissed because Plaintiff fails to state a claim for
federal relief and because his federal claims are barred by the twoyear statute of limitations. The Court does not address Plaintiff's
state claims at this time, since federal jurisdiction is presently
lacking.
2.
Plaintiff's motion to file a supplemental pleading is denied
(d/e 10) as unnecessary. The motion is an elaboration of Plaintiff's
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claims but does not cure the legal defects of the claims Plaintiff
pursues in his amended complaint.
3.
If Plaintiff is currently being denied sex offender
treatment, Plaintiff may file an amended complaint by December 1,
2013, setting forth Plaintiff's efforts to obtain treatment and
Defendants' responses.
ENTERED:
November 18, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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