Drew-Hakim v. Twaddell
Filing
6
MERIT REVIEW OPINION (See Written Opinion): (1) The clerk is directed to attempt service on Defendants pursuant to the standard procedures; and, (2) Plaintiff's motion for the appointment of counsel is denied (d/e 4 ). Entered by Judge Sue E. Myerscough on 10/30/2013. (VM, ilcd)
E-FILED
Wednesday, 30 October, 2013 02:22:11 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
ABDULLAH DREW-HAKIM,
aka Antoine D. Drew,
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Plaintiff,
v.
CHAPLAIN TWADDELL,
Defendant.
13-CV-3330
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and incarcerated in Western Illinois
Correctional center, seeks leave to proceed in forma pauperis.
The case is before the Court for a merit review pursuant to 28
U.S.C. § 1915A. 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.
2013). 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., 721 F.3d 418, 422 (7th
Cir. 2013)(quoted cite omitted).
Page 1 of 8
Plaintiff alleges that he was not allowed to participate in
Ramadan in 2012 because Defendant Twaddell determined that
Plaintiff had not submitted his request at least 45 days before
Ramadan began. Plaintiff asserts that administrative regulations
do not require 45-day notice and, in any event, Plaintiff would have
been unable to comply with the 45-day notice because he was
transferred to Western Correctional Center shortly before Ramadan
began. Plaintiff contends that the 45-day notice requirement is not
supported by legitimate penological reasons, particularly in
Plaintiff's situation.
Prisoners have a First Amendment right to reasonable
opportunities to practice their religion, subject to the legitimate
penological concerns of the prison. Maddox v. Love, 655 F.3d 709
(7th Cir. 2011); Ortiz v. Downey, 561 F.3d 664, 669 (7th Cir. 2009).
The Religious Land Use and Institutionalized Persons Act (RLUIPA)
also protects an inmate's right to practice his religion, forbidding a
substantial burden on that exercise unless the burden furthers a
compelling government interest and is the least restrictive means of
achieving that interest. 42 U.S.C. § 2000cc-1(a).
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Plaintiff states an arguable First Amendment claim. A
developed record is needed to determine whether a legitimate
reason rationally supported the denial of Plaintiff's request to
participate in Ramadan. As for RLUIPA, only injunctive relief is
available under RLUIPA, not damages. Grayson v. Schuler, 666
F.3d 450, 451 (7th Cir. 2012). Plaintiff does not seek injunctive
relief. This case will therefore proceed only on Plaintiff's First
Amendment claim. If Plaintiff intends to seek injunctive relief, he
should file an amended complaint explaining the injunctive relief he
seeks.
Plaintiff's motion for the Court to try to recruit pro bono
counsel on his behalf is denied. The most the Court can do is ask
for volunteer counsel. In determining whether the Court should
attempt to find an attorney to voluntarily take the case, the
question is “given the difficulty of the case, does the plaintiff appear
competent to litigate it himself?" Pruitt v. Mote, 503 F.3d 647, 65455 (7th Cir. 2007). Plaintiff does not set forth his education but his
complaint is well written, demonstrating knowledge of the relevant
facts and law. His claim is relatively simple. He already has
personal knowledge of the events giving rise to his claim and has
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attached relevant evidence. Plaintiff therefore appears competent to
proceed pro se in light of the relative simplicity of his claim.
IT IS THEREFORE ORDERED:
1)
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states a First
Amendment religious practice claim based on the denial of his
request to participate in the Ramadan celebration. 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 claim based on the Religious Land Use and
Institutionalized Persons Act is dismissed because only injunctive
relief is available under that Act.
3)
This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for Defendants before
filing any motions, in order to give Defendants notice and an
opportunity to respond to those motions. Motions filed before
Defendants' counsel has filed an appearance will generally be
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denied as premature. Plaintiff need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.
4)
The Court will attempt service on Defendants by mailing
each Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 days of the
entry of this order, Plaintiff may file a motion requesting the status
of service. After Defendants have been served, the Court will enter
an order setting discovery and dispositive motion deadlines.
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.
6)
Defendants shall file an answer within 60 days of the
date the waiver is sent by the Clerk. A motion to dismiss is not an
answer. The answer should include all defenses appropriate under
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the Federal Rules. The answer and subsequent pleadings shall be
to the issues and claims stated in this Opinion. In general, an
answer sets forth Defendants' positions. The Court does not rule
on the merits of those positions unless and until a motion is filed by
Defendants. Therefore, no response to the answer is necessary or
will be considered.
7)
This District uses electronic filing, which means that,
after Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
filed with the Clerk. Plaintiff must mail his discovery requests and
responses directly to Defendants' counsel. Discovery requests or
responses sent to the Clerk will be returned unfiled, unless they are
attached to and the subject of a motion to compel. Discovery does
not begin until Defense counsel has filed an appearance and the
Court has entered a scheduling order, which will explain the
discovery process in more detail.
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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.
10)
If a Defendants 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).
IT IS FURTHER ORDERED: (1) The clerk is directed to attempt
service on Defendants pursuant to the standard procedures;
and, (2) Plaintiff's motion for the appointment of counsel is
denied (d/e 4).
ENTERED: October 30, 2013
FOR THE COURT:
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/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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