Brown v. Knisley et al
Filing
17
MERIT REVIEW OPINION entered by Judge Colin Stirling Bruce on 1/7/2014. The clerk is directed to attempt service on Defendants pursuant to the standart procedures. Plaintiff's 10 petition to proceed in forma pauperis is denied as unnecessary and Plaintiff's 12 motion for counsel is denied. See written opinion. (Copy to Plaintiff via e-filing project at Western IL CC.)(KMR, ilcd)
E-FILED
Tuesday, 07 January, 2014 02:46:06 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
KENNETH BROWN,
Plaintiff,
v.
MICHAEL E. KNISLEY AND
LIEUTENANT HAMILTON,
Defendants.
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13-CV-3347
MERIT REVIEW OPINION
Plaintiff, proceeding pro se and currently incarcerated in
Western Correctional Center, seeks leave to proceed in forma
pauperis. This case is before the Court for a 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, 729 F.3d 645, 649 (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).
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ALLEGATIONS
Plaintiff alleges that, on or about October 20, 2012, he was in
line to receive medication when a discussion began between Plaintiff
and Defendant Sergeant Knisley. Plaintiff believed that the
discussion was a respectful exchange of information, but Sergeant
Knisley perceived otherwise, telling Plaintiff, "Don't fucking talk to
me like that." (Complaint, p. 6.) Sergeant Knisley then sprayed
mace in Plaintiff's face and tried to force Plaintiff to the floor, even
though Plaintiff allegedly had not resisted or disobeyed. During his
escort to segregation, Plaintiff was taken to a storage room sink,
where Defendant Lieutenant Hamilton and another Lieutenant
allegedly forced Plaintiff's head under water in a manner which
made Plaintiff feel like he was drowning. Plaintiff told Hamilton
that he could not breathe, but Hamilton continued to hold Plaintiff's
head under water. Both Lieutenants allegedly tried to break
Plaintiff's wrists while removing Plaintiff's handcuffs.
After Plaintiff was placed in segregation, he was allegedly
refused paper, pen, and envelopes, preventing him from informing
anyone outside the prison about the excessive force, and Plaintiff
was not allowed to contact his family for 30 days.
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ANALYSIS
Accepting Plaintiff's allegations as true, Plaintiff states an
arguable Eighth Amendment claim for excessive force against
Sergeant Knisley and Lieutenant Hamilton. Sanchez v. City of
Chicago, 700 F.3d 919, 927 n. 3 (7th Cir. 2012)(Eighth Amendment
excessive force is the "'unnecessary and wanton infliction of pain'"—
force applied "'maliciously and sadistically for the very purpose of
causing harm'" rather than in a "good faith effort to maintain or
restore discipline.")(quoted cite omitted). Plaintiff names no other
Defendants at this time, though his allegations imply that others
were involved. At this point the claim will proceed against
Defendants Knisley and Hamilton.
Plaintiff also states an arguable claim that he was prevented
from exercising his First Amendment right to send outgoing
correspondence. Kaufman v. McCaughtry, 419 F.3d 678 (7th Cir.
2005)("Inmates have a First Amendment right to both send and
receive mail . . . ." subject to the prison's legitimate penological
concerns.)(citations omitted). Whether the restriction was justified
and whether Defendants Knisley and Hamilton were personally
Page 3 of 8
responsible for Plaintiff's alleged lack of writing materials and
envelopes cannot be determined without a more developed record.
On a separate matter, Plaintiff has filed another petition to
proceed in forma pauperis. The petition is unnecessary because
Plaintiff is already proceeding in forma pauperis. Plaintiff is advised
that 28 U.S.C. § 1915(b)(1) requires the Court to collect the filing fee
in installments from Plaintiff's prison account, based on Plaintiff's
income, which includes gifts. Lucien v. DeTella, 141 F.3d 773, 776
(7th Cir. 1998)(income under § 1915(b)(2) means all deposits into
prison trust account, regardless of source).
Plaintiff has also filed a motion for the Court to seek pro bono
counsel on Plaintiff's behalf. 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 already has personal knowledge of the
facts relevant to his relatively simple claims. His pleadings
demonstrate that he is able to write effectively and that he is
competent to proceed pro se in this case.
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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 an Eighth
Amendment excessive force claim and a First Amendment claim
that he was prevented from sending outgoing correspondence. 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)
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
Defense counsel has filed an appearance will generally be denied as
premature. Plaintiff need not submit any evidence to the Court at
this time, unless otherwise directed by the Court.
3)
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
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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.
4)
If Defendants no longer work at the address provided by
Plaintiff, the prison litigation coordinator 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 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
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 Defendant's 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.
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6)
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 Defense 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.
7)
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.
8)
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
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or phone number will result in dismissal of this lawsuit, with
prejudice.
9)
If Defendants fail 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).
10)
The clerk is directed to attempt service on Defendants
pursuant to the standard procedures.
11)
Plaintiff's petition to proceed in forma pauperis is denied
as unnecessary (d/e 10).
12)
Plaintiff's motion for counsel is denied (d/e 12).
ENTERED: 1/7/2014
FOR THE COURT:
s/Colin Stirling Bruce
COLIN STIRLING BRUCE
UNITED STATES DISTRICT JUDGE
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