Lollis v. Hunzyker et al

Filing 9

MERIT REVIEW OPINION (Rule 16 Deadline 12/27/2016) Entered by Judge Harold A. Baker on 10/25/2016. 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 the defendants pursuant to the standard procedures. Plaintiff's motion for counsel 6 is denied, with leave to renew upon demonstrating that he made attempts to hire his own counsel. Pruitt v. Mote, 503 F.3d 6 47, 654-55 (7th Cir. 2007). This typically requires writing to several lawyers and attaching the responses. If Plaintiff renews his motion, he should set forth how far he has gone in school, any jobs he has held inside and outside of prison, any clas ses he has taken in prison, and any prior litigation experience he has. Plaintiff's motion for leave to file amended complaint 8 is granted. The clerk is directed to file the amended complaint and exhibit, which are attached to the motion. (LN, ilcd)

E-FILED

Tuesday, 25 October, 2016 04:09:11 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
EMANUEL LOLLIS,
Plaintiff,
v.
HUNZYKER, et al.,
Defendants.

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16-CV-3258

MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se, and currently incarcerated in the Pontiac
Correctional Center, was granted leave to proceed in forma pauperis. The plaintiff filed
a motion for leave to amend his complaint (#8) on October 17, 2016, which is granted.
The case is now before the court for a merit review of plaintiff’s claims. The court is
required by 28 U.S.C. § 1915A to “screen” the plaintiff’s amended complaint, and
through such process to identify and dismiss any legally insufficient claim, or the entire
action if warranted. A claim is legally insufficient if it “(1) is frivolous, malicious, or
fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from
a defendant who is immune from such relief.” 28 U.S.C. § 1915A.
In reviewing the amended complaint, the court accepts the factual allegations as
true, liberally construing them in the 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)(citation omitted). The court has reviewed the
amended complaint and has also held a merit review hearing in order to give the
plaintiff a chance to personally explain his claims to the court.
The plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging that, while
incarcerated at Western Illinois Correctional Center, he was punched, choked, kicked,
and stomped unconscious by at least six (6) correctional officers (Defendants Hunziker,
Finch, and John Does 1 through 4) while Defendant Lt. John Doe watched and did
nothing. The plaintiff alleges that Defendant Nurse Jane Doe overlooked his obvious
medical injuries (bleeding, swelling, etc.) and did not provide treatment. The plaintiff
alleges he was then placed into a cell without drinking water and a mattress for three
(3) days. The plaintiff also alleges that his outgoing mail has been restricted since his
arrival at Pontiac Correctional Center.
The plaintiff states claims for excessive force against Defendants Hunziker, Finch
and John Does 1 through 4, failure to intervene against Defendant Lt. John Doe, and
deliberate indifference to a serious medical need against Defendant Nurse Jane Doe.
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The plaintiff fails to state a claim for conditions-of-confinement. See Burton v.
Downey, 805 F.3d 776, 786 (7th Cir. 2015)(the deprivation of “the minimal civilized
measure of life’s necessities” in the context of a conditions-of-confinement claim
involves “deprivations of essential food, medical care, or sanitation” (emphasis in
original)).
The plaintiff’s claim for restricting his outgoing mail against the Pontiac officials
should be dismissed. “Unrelated claims against different defendants belong in different
suits.” See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
IT IS THEREFORE ORDERED:
1.
Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the
court finds that the plaintiff states Eighth Amendment claims for (1) excessive force
against defendants Hunziker, Finch, and John Doe 1, 2, 3, and 4, (2) failure to intervene
against Lt. John Doe, and (3) deliberate indifference to a serious medical need against
Nurse Jane Doe. 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. The plaintiff is advised to wait
until counsel has appeared for the defendants before filing any motions, in order to give
the 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. The 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 the defendants by mailing each
defendant a waiver of service. The defendants have 60 days from the date the waiver is
sent to file an answer. If the defendants have not filed answers or appeared through
counsel within 90 days of the entry of this order, the plaintiff may file a motion
requesting the status of service. After the 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 the 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.
The 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 the defendants' positions. The court does not rule on the merits of those
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positions unless and until a motion is filed by the 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 filed by the plaintiff with the clerk. The plaintiff does not
need to mail to defense counsel copies of motions and other papers that the 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. The 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 the defendants is hereby granted leave to depose the plaintiff
at his place of confinement. Counsel for the defendants shall arrange the time for the
deposition.
8.
The plaintiff shall immediately notify the court, in writing, of any change
in his mailing address and telephone number. The 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. Marshals 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 the defendants pursuant to the
standard procedures.
12.
Plaintiff’s motion for counsel (#6) is denied, with leave to renew upon
demonstrating that he made attempts to hire his own counsel. Pruitt v. Mote, 503 F.3d
647, 654-55 (7th Cir. 2007). This typically requires writing to several lawyers and
attaching the responses. If Plaintiff renews his motion, he should set forth how far he
has gone in school, any jobs he has held inside and outside of prison, any classes he has
taken in prison, and any prior litigation experience he has.

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13.
Plaintiff’s motion for leave to file amended complaint (#8) is granted. The
clerk is directed to file the amended complaint and exhibit, which are attached to the
motion.
Entered this 25th day of October, 2016
/s/ Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE

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