Carpenter v. Scott et al
Filing
7
MERIT REVIEW OPINION: The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The Clerk is directed to attempt service on Defendants pursuant to the standard procedures. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 6/25/2014. (MJ, ilcd)
E-FILED
Wednesday, 25 June, 2014 04:14:56 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
JERMAINE D. CARPENTER,
Plaintiff,
v.
GREGG SCOTT, et al.
Defendants.
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14-CV-3047
MERIT REVIEW OPINION
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
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
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forma pauperis only if the complaint states a federal claim. 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).
Plaintiff alleges that another resident, Joe Clark, was
antagonizing and ridiculing Plaintiff daily. Eventually the situation
boiled over into a fight between Plaintiff and Clark. Both Plaintiff
and Clark were punished for fighting, but Clark's punishment was
either lighter or not enforced. Plaintiff believes that the difference in
treatment was due to a desire to retaliate against Plaintiff for
Plaintiff's lawsuits. Joe Clark kept harassing Plaintiff without
consequence, and they remained living on the same unit.
On January 13, 2014, Plaintiff was being escorted, in
handcuffs, to another area of the facility. Plaintiff saw Joe Clark
and asked the escorting officer, Officer Lay, to ask Joe Clark to
move to a different area. Officer Lay remarked that everything
would be fine and proceeded to escort Plaintiff. Joe Clark then
came towards Plaintiff and struck Plaintiff in the face, knocked
Plaintiff to the ground, and continued to hit Plaintiff for at least 30
seconds. Despite the fact that Plaintiff was handcuffed and had not
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started the fight, Plaintiff was found guilty of fighting and again
punished.
Plaintiff states arguable claims for failure to protect him from a
substantial risk of assault from Joe Clark and for retaliation for
Plaintiff's exercise of his First Amendment rights. Drawing
inferences of personal responsibility against some of the Defendants
is a stretch, but that determination should await a developed
record.
However, Defendant Scott, Rushville's Director, cannot be liable
simply because he is in charge or declined to take Plaintiff's side.
Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001)(no
respondeat superior liability under § 1983); Soderbeck v. Burnett
County, 752 F.2d 285, 293 (7th Cir. 1985)(“Failure to take
corrective action cannot in and of itself violate section 1983.
Otherwise the action of an inferior officer would automatically be
attributed up the line to his highest superior . . . .”). Scott will,
therefore, be dismissed, and the case will proceed against the
remaining Defendants.
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IT IS ORDERED:
1.
Plaintiff's petition to proceed in forma pauperis is granted
(3). Pursuant to a review of the Complaint, the Court finds that
Plaintiff states constitutional claims for failure to protect him from a
substantial risk of assault from Joe Clark and for retaliation for
Plaintiff's exercise of his First Amendment rights. 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
Defendants' 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 sending
each Defendant a waiver of service. Defendants have 60 days from
the date the waiver of service is sent to file an Answer. If
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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 counsel has appeared for
Defendants, the Court will enter a scheduling order setting
deadlines for discovery and dispositive motions.
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 60 days of the day
the waiver of service 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.
6.
Once counsel has appeared for a Defendant, Plaintiff need
not send copies of his filings to that Defendant or to that
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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.
7.
Counsel for Defendants is hereby granted leave to depose
Plaintiff at Plaintiff's 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
or phone number will result in dismissal of this lawsuit, with
prejudice.
9.
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).
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10. The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
11. The Clerk is directed to attempt service on Defendants
pursuant to the standard procedures.
ENTERED: June 25, 2014
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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