Class v. Nave
Filing
12
MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 7/3/2014. Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that the Plaintiff states an Eighth Amendment claim for failure to protect and a First A mendment claims for retaliation against him for filing a grievance. This case is now in the process of service. Plaintiff's motion for default is denied, d/e 10 . Plaintiff's motion for counsel is denied, d/e 5 with leave to renew after Plaintiff tries to obtain counsel on his own. (MAS, ilcd)
E-FILED
Thursday, 03 July, 2014 01:26:50 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
CRISTHIAN M. CLASS,
Plaintiff,
v.
LT. NAVE,
Defendants.
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14-CV-3089
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, 729 F.3d 645, 649 (7th Cir. 2013).
Plaintiff alleges that he informed Lieutenant Nave that
Plaintiff's cellmate was a belligerent, unreasonable bully who had
repeatedly challenged Plaintiff to fight. The cellmate decided that
he alone would determine when and if the cell window was open.
The roommate would regularly force Plaintiff to keep the window
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open during frigid temperatures. When Plaintiff tried to close the
window, his roommate bumped his chest into Plaintiff, challenging
Plaintiff to a fight. Plaintiff pleaded with Lieutenant Nave to be
relocated, but Nave allegedly did nothing.
The day after Plaintiff had asked Lieutenant Nave for help,
Plaintiff's roommate stabbed Plaintiff with a pencil and bit Plaintiff
several times. Plaintiff broke his own hand trying to defend himself.
After the incident, Plaintiff filed a grievance, which allegedly
unleashed a barrage of retaliatory behavior by other officers,
orchestrated by Lieutenant Nave.
Plaintiff states an arguable Eighth Amendment claim for
failure to protect and a First Amendment claim for retaliation for
filing grievances. However, Plaintiff names only Lieutenant Nave as
a Defendant. If Plaintiff intends to sue the other officers who
retaliated against him, Plaintiff must file a motion to add the
officers as defendants.
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 claim for failure to protect and a First Amendment
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claims for retaliation against him for filing a grievance.
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 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.
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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
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 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.
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
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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.
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
or phone number will result in dismissal of this lawsuit, with
prejudice.
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9)
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).
10)
Within 10 days of receiving from Defendants' counsel an
authorization to release medical records, Plaintiff is directed to sign
and return the authorization to Defendants' counsel.
11)
The clerk is directed to attempt service on
Defendants pursuant to the standard procedures.
12)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
13)
Plaintiff's motion for default is denied (10).
14)
Plaintiff's motion for counsel is denied (5) with leave
to renew after Plaintiff tries to obtain counsel on his own.
Typically this means writing to several law firms or lawyers and
attaching the responses to the motion for counsel. If Plaintiff
files another motion for counsel, Plaintiff should set forth his
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highest educational level attained, any classes he has taken in
prison or certificates he has achieved, and any jobs he has held
in and out of prison.
ENTERED:
July 3, 2014
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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