Lewis v. Olson et al
Filing
9
MERIT REVIEW OPINION Entered by Judge Sue E. Myerscough on 05/17/2018. SEE WRITTEN OPINION. Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states First Amendment claims against Defenda nt Olson for retaliating against Plaintiff for Plaintiff's grievances and for interfering with Plaintiff's efforts to pursue post-conviction relief. Defendants Fry, Kirk, and Banta are dismissed without prejudice for failure to state a claim against them. This case is now in the process of service. Plaintiff's motion for the Court to appoint counsel is denied ( 4 ).The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. (DM, ilcd)
E-FILED
Thursday, 17 May, 2018 04:21:08 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
JERRY LEE LEWIS,
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Plaintiff,
v.
MICHELLE OLSON,
DAN FRY, KIRK,
MR. BANTA,
Defendants.
18-CV-3052
MERIT REVIEW OPINION
Plaintiff filed this case pro se from the Illinois River
Correctional Center. The case is before the Court for a merit review
pursuant to 28 U.S.C. § 1915A.1 This statute requires the Court to
review a complaint filed by a prisoner to identify the cognizable
claims and to dismiss part or all of the complaint if no claim is
stated.
In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in Plaintiff's favor.
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 (without prepaying the filing fee in full) unless the prisoner is under
“imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
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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).
Plaintiff alleges that Defendants Kirk and Fry have prevented
Plaintiff from using the grievance procedure by taking Plaintiff’s
grievances and not processing them. Defendant Fry also allegedly
did nothing to assist Plaintiff in Plaintiff’s legal pursuits and put
Plaintiff in for a transfer in retaliation for a lawsuit Plaintiff had
filed. The grievances that Plaintiff was able to file were allegedly not
handled properly.
The allegations against Defendants Kirk and Fry about
interfering with Plaintiff’s ability to use the prison grievance
procedure do not state a constitutional claim. Plaintiff does not
have a constitutional right to a prison grievance procedure.
Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).
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Plaintiff’s allegation that Defendant Fry arranged for Plaintiff’s
transfer in retaliation for another of Plaintiff’s lawsuits is too vague
and conclusory to state a claim. The only other lawsuit Plaintiff
had going at that time was a lawsuit about the conditions of
confinement in Western Illinois Correctional Center. Lewis v.
Watson, 17-cv-3175 (C.D. Ill.). The Warden is the only Defendant
in that case (17-cv-3175), and Plaintiff’s transfer did not occur until
months after that case was served, according to the dockets.
Plaintiff offers no facts which might allow an inference that
Defendant Fry knew about the case or was motivated by retaliation
about that case. Additionally, Plaintiff does not explain how a
transfer from Western Illinois Correctional Center to Illinois River
Correctional Center was adverse—both prisons are medium security
prisons, and Plaintiff allegedly received reading classes in Illinois
River, something which he was denied in Western. Surita v. Hyde,
665 F.3d 860, 878 (7th Cir. 2011)(First Amendment retaliation
“claims must be based on a concrete adverse action which would
deter a person of ‘ordinary firmness’ from exercising a First
Amendment right.”). Defendants Fry and Kirk will be dismissed
without prejudice for failure to state a claim against them.
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Plaintiff makes no specific allegations against Officer Banta,
who is listed in the caption but not in the body of the complaint.
Officer Banta will also be dismissed, without prejudice.
The last Defendant to discuss is Defendant Olson. Plaintiff
alleges that, in retaliation for Plaintiff’s grievances against
Defendant Olson, Defendant Olson allegedly interfered with
Plaintiff’s ability to access legal materials and either refused or was
unable to help Plaintiff with his legal research. Defendant Olson
also allegedly did not have complete books of statutes or the proper
legal forms that Plaintiff needed to pursue post-conviction relief.
The Court cannot rule out a First Amendment claim against
Defendant Olson for interfering with Plaintiff’s access to legal
resources in retaliation for Plaintiff’s grievances against Defendant
Olson, though exactly what the retaliation was is unclear.
Defendant Olson cannot be liable solely because the law library is
inadequate. The Court also cannot rule out a First Amendment
claim against Defendant Olson for allegedly interfering with
Plaintiff’s ability to file for post-conviction relief. Ortloff v. United
States, 335 F.3d 652, 656 (7th Cir. 2003)(“[A] right to access-tocourts claim exists only if a prisoner is unreasonably prevented
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from presenting legitimate grievances to a court; various resources,
documents, and supplies merely provide the instruments for
reasonable access and are not protected in and of themselves.”).
IT IS ORDERED:
1)
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states First
Amendment claims against Defendant Olson for retaliating against
Plaintiff for Plaintiff’s grievances and for interfering with Plaintiff’s
efforts to pursue post-conviction relief.
2)
Defendants Fry, Kirk, and Banta are dismissed without
prejudice for failure to state a claim against them.
3)
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 the Defendant before
filing any motions, in order to give Defendant notice and an
opportunity to respond to those motions. Motions filed before
Defendant’s counsel has filed an appearance will generally be
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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 Defendant by mailing
the Defendant a waiver of service. The Defendant has 60 days from
the date the waiver is sent to file an Answer. If the Defendant has
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 Defendant has 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)
The Defendant 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
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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 Defendant’s position. The Court does not rule on
the merits of this position unless and until a motion is filed by the
Defendant. Therefore, no response to the answer is necessary or
will be considered.
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.
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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
or phone number will result in dismissal of this lawsuit, with
prejudice.
11)
If the 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 the Defendant and will require the
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 Defendant’s counsel an
authorization to release medical records, Plaintiff is directed to sign
and return the authorization to Defendant’s counsel.
13)
Plaintiff’s motion for the Court to appoint counsel is
denied (4), with leave to renew upon setting forth how far he has
gone in school, any jobs he has held inside and outside of prison,
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any classes he has taken in prison, any prior litigation experience
he has, and any other current litigation he has pending.
14)
The clerk is directed to terminate Defendants Fry,
Kirk, and Banta.
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 the Defendant pursuant to the standard procedures.
16)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: May 17, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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