Pegues v. Orrill et al

Filing 10

OPINION (See Written Opinion): Plaintiff's petition to proceed in forma pauperis is granted (d/e 2 ). Plaintiff's motion to expedite the review of his complaint is denied as moot (d/e 9 ). This cause is set for further scheduling pro cedures under Fed. R. Civ. P. 16 on October 28, 2013, at 2:00 p.m., or as soon as the Court can reach the case, before U. S. District Judge Sue E. Myerscough by telephone conference. Entered by Judge Sue E. Myerscough on 8/19/2013. (VM, ilcd)

E-FILED

Monday, 19 August, 2013 11:53:34 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
WALTER PEGUES,
Plaintiff,
v.
SHON ORRILL, et al.,
Defendants.

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13-CV-3200

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.
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).
Plaintiff alleges that he has been subjected to continuing
harassment and retaliation for his complaints against Defendant
Orrill for racially derogatory remarks and unprofessional behavior.
Retaliation for Plaintiff's exercise of his right to challenge the
conditions of his confinement states a First Amendment claim.
Additionally, though racially derogatory remarks do not provide an
independent basis for a constitutional claim, a plausible inference
arises that the racist remarks coupled with the harassing behavior
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violates Plaintiff's equal protection rights. Similarly, while the
supervisory Defendants cannot be liable for the constitutional
violations of their subordinates, the supervisory Defendants can be
liable for turning a blind eye to those violations. These
determinations should be made on a developed factual record.
IT IS ORDERED:
1.

Plaintiff's petition to proceed in forma pauperis is granted

(d/e 2). Pursuant to its review of the Complaint, the Court finds
that Plaintiff states the following claims: 1) a First Amendment
claim for retaliation for Plaintiff's exercise of Plaintiff's First
Amendment rights; and 2) an equal protection claim based on
alleged race discrimination. 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.
2.

Plaintiff's motion to expedite the review of his complaint is

denied as moot (d/e 9).
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
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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.
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
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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.
8.

This cause is set for further scheduling procedures under

Fed. R. Civ. P. 16 on October 28, 2013, at 2:00 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.

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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: August 19, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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