Powers v. Scott et al

Filing 10

MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 08/11/2014. SEE WRITTEN OPINION. Plaintiff's motions to proceed in forma pauperis are granted ( 3 , 5 ). His motion to waive the partial filing fee is denied 7 . He must pay the en tire $22.25 fee within fourteen days of this order. The Clerk is directed to dismiss Defendant Wanda Pennock for failure to state a claim upon which relief can be granted. The Clerk is directed to attempt service on Defendants pursuant to the standard procedures and set an internal court deadline 60 days from the entry of this order for the court to check on the status of service and enter scheduling deadlines. (DM, ilcd)

E-FILED

Monday, 11 August, 2014 02:40:53 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
THOMAS POWERS,
Plaintiff,

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v.
GREGG SCOTT, et.al.,
Defendants.

14-CV-3201

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 forma pauperis only if the complaint states a federal claim.
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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).
ALLEGATIONS
Plaintiff is civilly detained in the Rushville Treatment and
Detention Center pursuant to the Illinois Sexually Violent Persons
Commitment Act, 725 ILCS 207/1, et seq. The Plaintiff alleges
Director Gregg Scott, Security Director Eric Kunkel, Food Service
Supervisor Steven Dredge and Security Therapy Aid Wanda
Pennock violated his constitutional rights. Specifically, the Plaintiff
says he is a Kasruth Observant Messaianic Hebrew and the
Defendants have substantially burdened his ability to practice his
faith.
For instance, the Plaintiff says Defendants Kunkel and Dredge
have refused to allow him the opportunity to meet with a Chaplain,
Clergy Member or any other Religious Advisor. The Plaintiff says
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inmates of other faiths are allowed to meet with spiritual leaders.
The Plaintiff further claims his religion requires him to eat kosher
meals, but Defendant Dredge does not provide food which is kosher
and the meals which are provided are unpalatable and repetitive.
The Plaintiff says the unappetizing meals are “a form of
harassment, punishment and retaliation” for the added expense of
providing kosher meals at the facility.
Finally, the Plaintiff says Defendant Pennock conducts a
retaliatory search at every religious service. The Plaintiff says the
retaliatory searches are part of an “unwritten policy” instituted by
Defendant Scott. In addition, the Plaintiff says Defendant Pennock
ended one service after only fifteen minutes.
ANALYSIS
Pretrial detainees and other persons who have been
involuntarily committed do not lose their First Amendment rights to
freely exercise religion just because they are incarcerated. See AlAlamin v. Gramley, 926 F.2d 680, 686 (7th Cir.1991). The First
Amendment entitles a detainee to practice his or her religion so long
as the practice does not unduly burden the institution. Richards v.
White, 957 F.2d 471, 474 (7th Cir.1992) (citing Hunafa v. Murphy,
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907 F.2d 46, 47 (7th Cir.1990)) In addition, the Religious Land
Use and Institutionalized Persons Act (RLUIPA) provides that
institutions receiving federal financial assistance may not “impose a
substantial burden on the religious exercise” of an institutionalized
person unless it is the “least restrictive means” of furthering a
“compelling governmental interest.” 42 U.S.C. § 2000cc–1(a)(2).
The Plaintiff has adequately alleged Defendants Scott and
Kunkel violated his First Amendment Rights and his rights
pursuant to RLUIPA when they denied him the opportunity to meet
with a religious leader. The Plaintiff has also alleged Defendants
Scott and Kunkel violated his Fourteenth Amendment equal
protection rights when they allowed prisoners of other faiths to
receive visits with religious leaders. See Beiler v. Jay Cnty. Sheriff's
Office, 2012 WL 2880563 (N.D. Ind. July 13, 2012)( Fourteenth
Amendment's equal protection clause prohibits discrimination and
requires the evenhanded treatment of all religions).
In addition, the Plaintiff has stated a First Amendment and
RLUIPA claim against Defendant Dredge for failure to provide
kosher meals. However, the Plaintiff’s claim that the meals were

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unappetizing and repetitive does not rise to the level of a
constitutional violation. Stanley v. Page, 44 F. Appx 13, 15 (7th Cir.
2002)(repetitious, unappetizing food does not constitute “extreme
deprivations cognizable under the Eighth Amendment.”); see also
Dove v. Broome County Correctional Facility, 2011 WL 1118452 at
11 (N.D.N.Y. Feb, 17, 2011)(the Plaintiff cannot provide any
authority for the proposition that the denial of kosher food in prison
would rise to the level necessary to be deemed cruel and unusual
under the Eighth Amendment).
The Plaintiff has also failed to articulate any retaliation claim.
To state a First Amendment retaliation claim, the Plaintiff must
allege that “(1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely deter
First Amendment activity in the future; and (3) the First
Amendment activity was ‘at least a motivating factor’ in the
Defendants' decision to take the retaliatory action.” Bridges v.
Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (quoting Woodruff v.
Mason, 542 F.3d 545, 551 (7th Cir. 2008)); Gomez v. Randle, 680
F.3d 859, 866 (7th Cir. 2012). The Plaintiff has failed to identify

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any activity protected by the First Amendment which sparked
retaliatory action. Therefore, the Plaintiff has not stated any claim
based on the searches before or after religious services.
The Plaintiff has not articulated any other claim against
Defendant Pennock. The fact that she abruptly ended one religious
service on one occasion does not rise to the level of a constitutional
violation.
The Plaintiff is admonished that he can only seek injunctive
relief for his claims pursuant to RLUIPA. The Seventh Circuit has
declined “to read RLUIPA as allowing damages against defendants
in their individual capacities.” Nelson v Miller, 570 F.3d 868, 885,
889 (7th Cir. 2009); see also Maddox v Love, --F.3d–, 2011 WL
3690049 at 5 (7th Cir. Aug. 24, 2011). Therefore, the Plaintiff can
only seek injunctive relief for his RLUIPA claims against Defendants
Scott, Kunkel and Dredge.
Finally, the Plaintiff has filed a motion to waive the partial
filing fee accessed by the court. [7] The Plaintiff’s trust fund ledgers
over a six month period indicated an average monthly income of
$44.50. The Plaintiff has not demonstrated good cause to waive the
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partial fee of $22.25 and his motion is denied. The court will allow
the Plaintiff additional time to pay the fee.
IT IS ORDERED:
1.

Plaintiff's motions to proceed in forma pauperis are

granted.[3, 5]. His motion to waive the partial filing fee is
denied.[7] He must pay the entire $22.25 fee within fourteen
days of this order.
2.

Pursuant to a review of the Complaint, the Court finds

that Plaintiff states the following federal constitutional claims: a)
Defendants Scott and Kunkel violated Plaintiff’s First Amendment
Rights and his rights pursuant to RLUIPA when they denied him
the opportunity to meet with a religious leader; b) the actions of
Defendants Scott and Kunkel also violated Plaintiff’s Fourteenth
Amendment equal protection rights; and, c) Defendant Dredge
violated Plaintiff’s rights pursuant to the First Amendment and
RLUIPA when he failed to provide kosher meals. 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

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discretion on motion by a party for good cause shown or pursuant
to Federal Rule of Civil Procedure 15.
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
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 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.
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
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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 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.
7.

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.

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8.

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.
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 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).
11. The Clerk is directed to dismiss Defendant Wanda
Pennock for failure to state a claim upon which relief can be
granted.
12. The Clerk is directed to attempt service on Defendants
pursuant to the standard procedures and set an internal court

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deadline 60 days from the entry of this order for the court to
check on the status of service and enter scheduling deadlines.
ENTERED: August 11, 2014.
FOR THE COURT:
s/Sue E. Myerscough

    _________________________ 
                                                 SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE 

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