Carpenter v. Liberty Healthcare et al

Filing 6

OPINION (See Written Opinion):The hearing scheduled for June 24, 2013 is cancelled. The clerk is directed to notify Rushville Treatment and Detention Center of the cancellation. Defendants Liberty Healthcare, Alfreda Kibby, IDHS and Sandra Simpson are dismissed. The Clerk is directed to terminate these defendants from the case. Entered by Judge Sue E. Myerscough on 6/10/2013. (VM, ilcd)

E-FILED

Monday, 10 June, 2013 09:26:10 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JERMAINE CARPENTER,
Plaintiff,
v.
ALFREDA KIBBY, et al.,
Defendants.

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13-CV-3094

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

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state a claim, even if part of the filing fee has been paid. 28 U.S.C.
§ 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.
Plaintiff alleges that Defendant Clayton falsely accused
Plaintiff of intimidation and threats causing Plaintiff to be confined
to a cell without his property for more than 90 days. Whether this
deprivation was sufficiently severe to implicate a constitutionally
protected liberty interest cannot be made without more information.
If a protected liberty interest was affected, Plaintiff had a right to
procedural due process before his punishment was imposed—
adequate notice of the charge, an opportunity to be heard and to
present evidence to a neutral decision maker, a statement of
reasons for the findings, and some evidence to support the findings.
Wolff v. McDonnell, 418 U.S. 539, 564-65 (1974). At this point the
Court cannot rule out a procedural due process claim.
Plaintiff also alleges that he was punched in the mouth by
Defendant Robert Smith during a shakedown of Plaintiff's room.
Defendants Angel, Wilson, Mayes, and Chenoweth were also
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allegedly somehow involved in this use of force. An excessive
force/failure to intervene claim will proceed against Defendants
Smith, Angel, Wilson, Mayes, and Chenoweth.
Additionally, Plaintiff alleges that he has been subjected to
constant shake downs of his room and confiscation of his property
for the purpose of harassing Plaintiff. In a shakedown on June 25,
2011, Defendants Arendt and Erhgott took Plaintiff's letters and
papers, and Defendant Smith took Plaintiff's legal papers. Whether
Plaintiff states a constitutional claim arising from the shakedowns
and confiscations cannot be determined without more facts.
No plausible claims are stated against Liberty Healthcare,
Alfreda Kibby, IDHS, or Sandra Simpson. Defendant Simpson is
not liable for failing to properly respond to Plaintiff's grievance. See
Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996)(“a state’s
inmate grievance procedures do not give rise to a liberty interest
protected by the Due Process Clause.") IDHS cannot be sued under
42 U.S.C. § 1983 because IDHS is not a person. .”). Johnson v.
Supreme Court of Illinois, 165 F.3d 1140, 1141 (7th Cir.1999)
("states and their agencies are not 'persons' subject to suit under 42
U.S.C. § 1983"). Defendant Kibby cannot be sued solely because
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she was in charge. Chavez v. Illinois State Police, 251 F.3d 612,
651 (7th Cir. 2001)(no respondeat superior liability under § 1983).
Lastly, no plausible inference arises that Liberty Healthcare has an
unconstitutional policy or practice which caused any of Plaintiff's
constitutional deprivations. Billings v. Madison Metropolitan
School Dist., 259 F.3d 807, 816 (7th Cir. 2001)(municipality liable
under § 1983 only if municipality had unconstitutional practice or
policy which caused deprivation).
IT IS ORDERED:
1.

The hearing scheduled for June 24, 2013 is cancelled.

The clerk is directed to notify Rushville Treatment and Detention
Center of the cancellation.
2.

Pursuant to its review of the Complaint, the Court finds

that Plaintiff states the following constitutional claims: 1) a
procedural due process claim against Defendant Clayton arising
from Plaintiff's confinement to a cell without property for over 90
days; and, 2) an excessive force/failure to intervene claim against
Defendants Smith, Angel, Wilson, Mayes, and Chenoweth. Plaintiff
may also state a constitutional claim arising from the shakedowns

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and confiscation of property, but that determination must await a
more developed record.
3.

Defendants Liberty Healthcare, Alfreda Kibby, IDHS and

Sandra Simpson are dismissed. The Clerk is directed to terminate
these defendants from the case.
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
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).
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 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.

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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 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 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 struck 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.
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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 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 attempt service on Defendants pursuant to the
standard procedures.
ENTERED: June 10, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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