Southard v. Barr et al
Filing
7
MERIT REVIEW OPINION: The clerk is directed to substitute Brian Carey for Defendant Carry. The clerk is directed to terminate Defendants Barr, Beck, Durr, and Strayer. 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. The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. (SEE WRITTEN OPINION.) Rule 16 Deadline 6/5/2017. Entered by Judge Sue E. Myerscough on 4/5/2017. (GL, ilcd)
E-FILED
Wednesday, 05 April, 2017 08:45:20 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
BENNY SOUTHARD,
Plaintiff,
v.
SANGAMON COUNTY, et al.,
Defendants.
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17-CV-3070
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his detention in the Sangamon
County Jail. His Complaint is before the Court for a merit review
pursuant to 28 U.S.C. § 1915A. This section requires the Court to
identify cognizable claims stated by the Complaint or dismiss
claims that are not cognizable.1 In reviewing the complaint, the
Court accepts the factual allegations as true, liberally construing
them in Plaintiff's favor and taking Plaintiff’s pro se status into
account. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013).
However, conclusory statements and labels are insufficient.
1
A prisoner who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can
no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.” 28
U.S.C. § 1915(g).
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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).
Plaintiff alleges that, on February 24, 2017, he went to the
control room to ask Mrs. Thompson for a grievance form in order to
complain about H pod not having access to the commissary the day
before, while all the other pods were allowed to go. Plaintiff believes
that the H pod is discriminated against because the H pod houses
“LGBT” detainees and detainees charged with sex offenses.
Instead of giving Plaintiff a grievance form, Mrs. Thompson
went to get Sergeant Carey.2 Sergeant Carey then approached
Plaintiff, hurled a barrage of offensive comments at Plaintiff, and
then took Plaintiff out of camera range and assaulted Plaintiff,
causing Plaintiff injuries, including broken teeth. In addition to the
offensive comments, Sergeant Carey allegedly told Plaintiff that
Plaintiff got what he deserved for filing lawsuits.
These allegations state a plausible excessive force,
harassment, and retaliation claims against Sergeant Carey. The
Court is aware that “simple” verbal harassment does not rise to the
2
Plaintiff spells this name “Carry,” but the Court believes, from other cases, that the proper spelling may be Carey.
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level of a constitutional violation, but Plaintiff’s allegations arguably
allow the inference that the harassment was severe enough to
amount to punishment under the due process clause. See, e.g.,
Beal v. Foster, 803 F.3d 356 (7th Cir. 2015)(acknowledging that
“most verbal harassment . . . does not rise to the level of cruel and
unusual punishment” but reversing for further development where
inmate alleged pervasive verbal sexual harassment which arguably
put inmate at risk of harm from other inmates); Hughes v. Scott,
816 F.3d 955 (7th Cir. 2016)(civil detainee’s allegations of being
called ignorant, stupid, and a moron and warning that detainee’s
life would be better if he did not file grievances could arise to more
than simple verbal harassment); DeWalt v. Carter, 224 F.3d 607,
612 (7th Cir. 2000)(“Standing alone, simple verbal harassment does
not constitute cruel and unusual punishment, deprive a prisoner of
a protected liberty interest or deny a prisoner equal protection of
the laws.”)
However, no claim is stated on these allegations against the
Sheriff or the Jail superintendents. These individuals cannot be
held liable for the constitutional violations of their employees just
because they are in charge. No plausible inference arises that the
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Sheriff or Jail supervisors participated in, directed, or approved of
Defendant Carey’s behavior. See George v. Smith, 507 F.3d 605,
609-10 (7th Cir. 2007) (“Only persons who cause or participate in
the violations are responsible. Ruling against a prisoner on an
administrative complaint does not cause or contribute to the
violation.”); Soderbeck v. Burnett County, 752 F.2d 285, 293 (7th
Cir. 1985)(“Failure to take corrective action cannot in and of itself
violate section 1983. Otherwise the action of an inferior officer
would automatically be attributed up the line to his highest
superior . . . .”). They will be dismissed without prejudice to
amendment.
IT IS THEREFORE ORDERED:
1)
Based on the other cases pending in the Central District,
the Court believes that Defendant “Carry” should be “Brian Carey.”
If the Court is incorrect, then by April 14, 2017, Plaintiff should file
a motion to correct stating the first and last name of this defendant.
2)
Defendants Barr, Beck, Durr, and Strayer are dismissed,
without prejudice, for failure to state a claim against them.
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3)
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states constitutional
claims against Defendant Carey for excessive force, harassment,
and retaliation claims.
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.
4)
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.
5)
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.
6)
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.
7)
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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8)
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.
9)
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.
10)
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.
11)
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).
12)
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.
13)
The clerk is directed to substitute Brian Carey for
Defendant Carry.
14)
The clerk is directed to terminate Defendants Barr,
Beck, Durr, and Strayer.
15)
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.
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16)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: April 5, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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