Carpenter v. Kunkell et al
Filing
9
OPINION entered by Judge Sue E. Myerscough on 10/08/2013. SEE WRITTEN OPINION. Pursuant to a review of the Complaint, the Court finds that Plaintiff states the following federal constitutional claims: 1) procedural due process claim against Defend ants Groot, Haage, and Jumper; 2) First Amendment claim against Defendants Groot and Jumper for retaliating against Plaintiff for Plaintiff's lawsuits; 3) First Amendment claim against Defendant Baptist for retaliating against Plaintiff for Plaintiff's complaints about Baptist's alleged disrespectful behavior. (DM, ilcd)
E-FILED
Tuesday, 08 October, 2013 04:07:47 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JERMAINE CARPENTER,
Plaintiff,
v.
JERRY KUNKEL, et al.,
Defendants.
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13-CV-3141
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
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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 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)(quoted cite omitted).
ALLEGATIONS
On May 4, 2014, Plaintiff covered up the window to his room at
the Rushville Treatment and Detention Center in order to have
privacy while Plaintiff used the toilet. Defendant Baptist, who was
collecting dinner trays, opened the chuck hole to Plaintiff's room,
infringing on Plaintiff's privacy. Plaintiff protested, to which Baptist
responded with rude comments. Plaintiff then asked to speak to a
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supervising guard about Baptist's unprofessional behavior. This
caused Baptist to call a "code," which resulted in several guards
coming to the area. Plaintiff was required to accept a two hour "cool
down" even though Plaintiff had done nothing wrong.
Defendant Baptist wrote a false incident report against Plaintiff.
Defendants Groot and Jumper presided over Plaintiff's disciplinary
hearing, even though Groot and Jumper are Defendants in
Plaintiff's other pending lawsuits. Groot and Jumper were biased,
punishing Plaintiff in retaliation for the lawsuits. Plaintiff was not
allowed to provide exonerating evidence from witnesses. Plaintiff
received 14 days of segregation for his punishment, which included
the confiscation of his audio-visual equipment.
ANALYSIS
Procedural due process rights are not triggered until a
constitutionally significant deprivation is at stake. In Miller v.
Dobier, 634 F.3d 412 (7th Cir. 2011), the Seventh Circuit held that
the imposition of “close” status at the Rushville Treatment and
Detention Center did not trigger procedural due process
protections. However, whether Plaintiff suffered the same kind of
close status as in Miller cannot be determined at this point.
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Accordingly, a procedural due process claim will proceed against
Defendants Jumper, Groot, and James Haage. A retaliation claim
will proceed against Defendants Jumper and Groot for allegedly
retaliating against Plaintiff because of Plaintiff's lawsuits against
them. A retaliation claim will also proceed against Defendant
Baptist for allegedly filing a false report against Plaintiff in
retaliation for Plaintiff's objections to Baptist's alleged disrespectful
behavior.
The Court cannot discern a federal claim against the remaining
Defendants. Liberty Healthcare and the Security Director cannot be
held liable for the constitutional violations of employees or
subordinates. Chavez v. Illinois State Police, 251 F.3d 612, 651
(7th Cir. 2001)(no respondeat superior liability under § 1983). The
other Defendants were involved in confiscating Plaintiff's audiovisual equipment for two weeks as part of his punishment.
Confiscation of audio-visual equipment for two weeks does not rise
to the deprivation of a constitutional interest, even if the
confiscation were unfair.
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IT IS ORDERED:
1.
The hearing scheduled for October 15, 2013 is cancelled.
The clerk is directed to notify Rushville Treatment and Detention
Center of the cancellation.
2.
Plaintiff's petition to proceed in forma pauperis is granted
(d/e 3). Pursuant to a review of the Complaint, the Court finds that
Plaintiff states the following federal constitutional claims: 1)
procedural due process claim against Defendants Groot, Haage, and
Jumper; 2) First Amendment claim against Defendants Groot and
Jumper for retaliating against Plaintiff for Plaintiff's lawsuits; 3)
First Amendment claim against Defendant Baptist for retaliating
against Plaintiff for Plaintiff's complaints about Baptist's alleged
disrespectful behavior. 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.
Defendants Kunkell, Liberty Healthcare, M. Jackson,
Norman, Wear, and Baptist are dismissed for failure to state a claim
against them.
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4.
Based on the Court's experience in other cases, Defendant
"Hagee" is spelled "Haage."
5.
Plaintiff's motion to correct the spelling of Defendant
Kunkell's name is denied as unnecessary (d/e 6).
6.
The Court will attempt service on Defendants by mailing
each Defendant a waiver of service. 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).
7.
Defendants have 60 days from service to file an Answer. If
Defendants have not filed Answers or appeared through counsel
within 60 days of the entry of this order, Plaintiff may file a motion
requesting the status of service.
8.
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
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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.
9.
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.
10. 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.
11. 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
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Defendants pursuant to Local Rule 5.3. If electronic service on
Defendants is not available, Plaintiff will be notified and instructed
accordingly.
12. 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.
13. 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.
14. IT IS FURTHER ORDERED THAT THE CLERK IS
DIRECTED TO: 1) attempt service on Defendants pursuant to the
standard procedures; 2) correct the spelling of Defendant "Hagee" to
Defendant "Haage."; and, 3) set an internal court deadline 60 days
from the entry of this order for the Court to check on the status of
service.
ENTERED: October 8, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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