Powers v. Hankins et al

Filing 8

OPINION entered by Judge Sue E. Myerscough on 06/10/2013. SEE WRITTEN OPINION. The Court finds that Plaintiff states a First Amendment claim for denial of access to the courts and a claim for retaliation for exercising his right to access the cou rts. This case proceeds solely on the claims identified in this paragraph. Any additional claims shall not be included in the case, except at the Courts discretion on motion by a party for good cause shown or pursuant to Federal Rule of Civil Procedure 15. Defendants Simpson and White are dismissed. Clerk directed to attempt service on Defendants pursuant to the standard procedures. (DM, ilcd)

E-FILED

Monday, 10 June, 2013 02:01:23 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
THOMAS POWERS,
Plaintiff,
v.
JOSEPH HANKINS, et al.,
Defendants.

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13-CV-3097

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.
Liberally construed, Plaintiff alleges that the law library at
Rushville Treatment and Detention Center is so inadequate that he
has been prevented from pursuing several meritorious legal claims.
Further, he alleges that he was denied access to review discovery in
one of his cases (a computer disk containing over 3,000 pages),
which caused him to miss court deadlines. He also alleges that
Defendants have retaliated against him for attempting to pursue
those claims and/or for complaining about his inability to pursue
the claims.
"The right of access . . . is not 'an abstract freestanding right
to a law library or legal assistance.'" In re Maxy, 674 F.3d 658, 661
(7th Cir. 2012). To state an access claim, a plaintiff "must allege
that some action by the prison has frustrated or is impeding an
attempt to bring a nonfrivolous legal claim." Id.; see also Ortloff v.
United States, 335 F.3d 652, 656 (7th Cir. 2003)(“[A] right to
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access-to-courts claim exists only if a prisoner is unreasonably
prevented from presenting legitimate grievances to a court; various
resources, documents, and supplies merely provide the instruments
for reasonable access and are not protected in and of
themselves.")(abrogated on other grounds as recognized in Parrott v.
U.S., 536 F.3d 629, 635 (7th Cir. 2008). He must explain “the
connection between the alleged denial of access to legal materials
and an inability to pursue a legitimate challenge to a conviction,
sentence, or prison conditions.” Ortiz v. Downey, 561 F.3d 664,
671 (7th Cir.2009) (internal quotation and citation omitted).
Plaintiff does not give much detail about his legal pursuits,
which makes determining whether his legal claims were legitimate
difficult. “Without a tenable argument to pursue . . . , [a plaintiff]
cannot show actual prejudice resulting from denial of access to the
law library.” McCree v. Grissom, 657 F.3d 623, 624 (7th Cir.
2011)(no prejudice from lack of library access regarding pending
case, where pending case failed to state a claim).
However, Plaintiff does allege that he has been unable to file
meaningful responses to motions because he cannot obtain copies
of the cases cited in the motions, and that this inability prejudiced
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his efforts to defend himself in his detention proceedings. At this
point Plaintiff's access claim will remain for further development.
Plaintiff also states a claim for retaliating against him for his
lawsuits. For example, Plaintiff alleges that staff wrote him
disciplinary reports for trying to view the discovery documents sent
to him in one of his cases and for asking for his legal materials.
Plaintiff's First Amendment access and retaliation claims will
proceed for further development. However, no plausible inference
arises that Defendants Simpson or White were personally
responsible for these deprivations. As for Defendant Simpson,
failing to properly investigate and respond to Plaintiff's grievances
does not violate the Constitution. As for Defendant White, the fact
that White is an information systems analyst does not suggest that
White any authority to improve or increase Plaintiff's ability to
conduct legal research.
IT IS ORDERED:
1.

Pursuant to its review of the Complaint, the Court finds

that Plaintiff states a First Amendment claim for denial of access to
the courts and a claim for retaliation for exercising his right to
access the courts. This case proceeds solely on the claims
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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.
2.

Defendants Simpson and White are dismissed.

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).
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.

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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 struck by the Court.
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.
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8.

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.
9.

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: 06/10/2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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