Whatley v. Williams et al

Filing 8

MERIT REVIEW OPINION (See Written Opinion): Plaintiff's motion for counsel is denied 4 . Plaintiff's motion for status is denied as moot 7 . Entered by Judge Sue E. Myerscough on 8/10/2015. (VM, ilcd)

E-FILED

Monday, 10 August, 2015 10:10:02 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MICHAEL WHATLEY,
Plaintiff,
v.
TARRY WILLIAMS, et al.,
Defendants.

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15-CV-3098

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff, proceeding pro se and incarcerated in Pontiac
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). 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
The alleged events occurred in the Western Illinois
Correctional Center in the Fall of 2013. In November of 2013,
Plaintiff was interviewed by internal affairs staff regarding a letter
that Plaintiff had written to administrators expressing concern
about his safety at the Western Illinois Correctional Center. The
investigators told Plaintiff that they had not been able to
substantiate any of Plaintiff’s allegations and that Plaintiff was not
in danger. Liberally construed, the investigators then directed
Plaintiff to sign an interview sheet in which Plaintiff essentially
admitted that he was not in danger. Plaintiff refused to sign the
paper, even after being threatened with segregation. At least in part
for refusing to sign the paper, Plaintiff was placed in segregation
and was punished for intimidation and disobeying a direct order.
The punishment included 90 days of disciplinary segregation, a
disciplinary transfer, and the revocation of 15 days of good conduct
credit.
ANALYSIS
Plaintiff seeks, in part, the expungement of the disciplinary
ticket and the return of his good time credit. That relief can only be
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pursued in federal court as a habeas corpus action, after Plaintiff
has exhausted all his state court remedies available to challenge the
discipline. This is because restoration of Plaintiff’s good time would
shorten Plaintiff’s incarceration, and a challenge to the length of
incarceration belongs in a habeas action. Edwards v. Balisok, 520
U.S. 641, 648 (1997)(claims which "necessarily imply the invalidity
of the deprivation of . . . [an inmate's] good-time credits" are not
cognizable under 42 U.S.C. § 1983 until the prison disciplinary
decision has otherwise been invalidated, for example by
expungement, a state court order, or a writ of habeas corpus).
Thus, claims which imply that Plaintiff’s good time should be
restored cannot be pursued in a § 1983 action until the good time is
restored through other means.
However, Plaintiff might be able to proceed on a First
Amendment claim that he was punished for exercising a protected
constitutional right. Plaintiff’s refusal to sign the paper was
arguably an expression of dissent protected by the First
Amendment. The First Amendment claim may ultimately be barred
if the claim is, in effect, a challenge to Plaintiff’s loss of good time,
but that determination must await a more developed record.
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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 a potential First
Amendment claim that he was punished for refusing to sign a
document.

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
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of service. After Defendants have been served, the Court will enter
an order setting discovery and dispositive motion deadlines.
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.

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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 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
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or phone number will result in dismissal of this lawsuit, with
prejudice.
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 enter the standard order

granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.
12)

Plaintiff’s motion for counsel is denied (4). Plaintiff

already has personal knowledge of the relevant events and
possesses many of the relevant documents. He should be able to
obtain a copy of the document he was directed to sign in discovery.
He should also be able to obtain additional relevant information
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through discovery requests to the defendants. Plaintiff’s pleadings
in the record effectively communicate the facts underlying his
claims and demonstrate some knowledge of the law and legal
procedure. If Plaintiff renews his motion for counsel, Plaintiff
should state his educational level, job history in and out of prison,
litigation experience, and any classes he has taken in prison.
13)

Plaintiff’s motion for status is denied as moot (7).

ENTERED: August 10, 2015
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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