Talafhah v. Baldwin et al

Filing 9

MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 11/14/2017. (Rule 16 Deadline 1/16/2018.) The clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. Clerk is directed to add the following individuals as defendants: Anthony Riss; Bradley Jenkins; C/O Boyard; and, C/O Lipscomb. The clerk is directed to attempt service on the defendants pursuant to the standard procedures. Plaintiff's motion for counsel 4 is taken under advisement. (LN, ilcd)

E-FILED

Tuesday, 14 November, 2017 11:38:59 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
RASHA B. TALAFHAH,
Plaintiff,
v.
JOHN BALDWIN, et al.,
Defendants.

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17-CV-3194

MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se, and currently incarcerated in
Logan Correctional Center, was granted leave to proceed in forma
pauperis. 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 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 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 complaint and has also held a
merit review hearing in order to give the plaintiff a chance to
personally explain her claims to the court.
Plaintiff is currently serving a sentence at Logan for
possession of a stolen vehicle and aggravated battery while in
custody. Plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983
alleging that approximately five male correctional officers from the
tactical team held her down and pried her legs apart while another
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digitally penetrated her vagina, while she screamed for help.
Plaintiff stated that their purpose was to look for contraband.
Plaintiff alleges that prison officials investigated the incident, sent
the reports to the State’s Attorney, but that no charges have yet
been filed.
An Eighth Amendment claim for excessive force must go
beyond deliberate indifference, alleging that “officials applied force
maliciously and sadistically for the very purpose of causing harm.”
Farmer v. Brennan, 511 U.S. 825, 835 (1994). Plaintiff’s claim that
the male officers held her down and digitally penetrated her vagina
would sustain a claim of excessive force to survive merit review.
The use of excessive physical force against a prisoner may
constitute cruel and unusual punishment [even] when the inmate
does not suffer serious injury. Hudson v. McMillian, 503 U.S. 1, 4,
112 S.Ct. 995, 117 L.Ed.2d 156 (1992).
Plaintiff named only the prison administrators and officials
responsible for the ensuing investigation; she did not name those
officials she alleges were responsible for the allegations discussed
above. Accordingly, the Court will add the latter officials as
defendants in this matter and effect service via the standard
procedures.
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 an Eighth
Amendment claim for excessive force against the named
defendants. 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.
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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 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.
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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. Clerk is directed to add the following individuals as
defendants: Anthony Riss; Bradley Jenkins; C/O Boyard; and, C/O
Lipscomb.
12. The clerk is directed to attempt service on the defendants
pursuant to the standard procedures.
13. Plaintiff’s motion for counsel (#4) is taken under
advisement.
Entered this 14th day of November, 2017
/s/Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE

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