Schwab v. Kerr

Filing 6

MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 6/27/2014. Pursuant to a review of the Complaint, the Court finds that Plaintiff states First Amendment claims for retaliation and for chilling Plaintiff's protected speech and right to pursue legal redress. This case is now in the process of service. (Rule 16 Deadline 8/26/2014). (MAS, ilcd)

E-FILED

Friday, 27 June, 2014 12:22:31 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
DANNY RAYMOND SCHWAB,
Plaintiff,
v.
RYAN KERR,
Defendant.

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14-CV-3119

MERIT REVIEW 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
state a claim, even if part of the filing fee has been paid. 28 U.S.C.
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§ 1915(d)(2). Accordingly, this Court grants leave to proceed in
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 is pursuing a case in this Court which names security
guard Ryan Kerr as one of the defendants. Schwab v. Scott, et al.,
13-CV-3145. Plaintiff alleges that, on February 2, 2014 and in
retaliation for Plaintiff's pursuit of 13-CV-3145, Kerr blocked
Plaintiff's path to scan legal documents, berating Plaintiff with
names like "cry baby," "punk," "bitchy pain in the ass," "lying ass,"
"fag," "bitch," and "gay fucker." Kerr allegedly told Plaintiff that Kerr
would not allow Plaintiff to report Kerr's behavior to a supervisor,
warning Plaintiff that if Plaintiff went to Court again, that Kerr
would "make it his personal mission to make [Plaintiff's] life here a
living hell." Kerr also allegedly told Plaintiff that Plaintiff "needed
his ass beat."
Plaintiff states an arguable First Amendment claim for
retaliation for exercising his First Amendment right to pursue a
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lawsuit. He also states an arguable First Amendment claim that
Kerr's behavior chills Plaintiff's First Amendment right to pursue
legal redress. While derogatory comments alone do not violate the
Constitution, here Kerr allegedly coupled those comments with the
physical act of blocking Plaintiff's progress down the hall, which
arguably communicated an intent and ability to physically harm
Plaintiff.
IT IS ORDERED:
1. Pursuant to a review of the Complaint, the Court finds that
Plaintiff states First Amendment claims for retaliation and for
chilling Plaintiff's protected speech and right to pursue legal
redress. 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

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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
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.

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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
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

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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).
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 27, 2014

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

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