Burch v. Polley et al

Filing 14

MERIT REVIEW ORDER entered by Chief Judge James E. Shadid on 11/29/2018. IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO: 1) Grant Plaintiff's motion for leave to file an amended complaint, 11 ; 2) Dismiss all Defendants except Defendants L awrence for failure to state a claim upon which relief can be granted pursuant to by 28 U.S.C. §1915A or improper joinder; 3) Attempt service on Defendants Lawrence pursuant to the standard procedures; 4) set an internal court deadline 60 days f rom the entry of this order for the court to check on the status of service and enter scheduling deadlines; 5) enter the Court's standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act; 6) Open a separate lawsuit for Burch v. Riley and enter this text order in the new case. The only Defendant in the new lawsuit is Officer Riley. SEE FULL WRITTEN ORDER.(SAG, ilcd)

E-FILED

Thursday, 29 November, 2018 04:16:17 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
TYSHAWN BURCH,
Plaintiff,

CECIL POLLEY, et. al.,
Defendants

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Case No. 18-3057

MERIT REVIEW ORDER
Plaintiff’s original complaint was dismissed due to confusion over his intended
claims, but Plaintiff was given leave to file an amended complaint. See July 10, 2018
Merit Review Order. Plaintiff has now complied and his motion for leave to amend is
granted pursuant to Federal Rule of Civil Procedure 15. [11].
The Court is still 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.
Plaintiff’s amended complaint identifies some of the same Defendants and some
new Defendants. Plaintiff alleges Defendants Warden Cecil Polly, Vocational Teacher
Lawrence, Vocational School Principal Jackson, Clinical Supervisor Scott Thompson,
Grievance Officer Lisha Storment, Correctional Officer Riley, Lieutenant Griffen, and
“Internal Affairs” violated his constitutional rights at Graham Correctional Center.

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Plaintiff says on June 15, 2016, Vocational Teacher Lawrence “physically
attacked” him and Principal Jackson observed the incident. (Amd. Comp., p. 7).
Plaintiff does not explain how he was assaulted, but in his original complaint, Plaintiff
stated Defendant Lawrence “struck him in the back.” (Comp., p. 5). Plaintiff claims he
still suffers from severe back pain. For the purposes of notice pleading, Plaintiff has
alleged Defendant Lawrence used excessive force on June 15, 2016.
Plaintiff filed an emergency grievance the next day. Plaintiff says during the
investigation, he was interviewed by Warden Polley, Lieutenant Griffen, and Officer
Riley.
On June 22, 2016, Plaintiff claims Defendant Riley wrote a “false” disciplinary
ticket against him which led to Plaintiff’s transfer to another facility. (Amd. Comp., p.
7). Plaintiff provides no further information about the ticket in his amended complaint.
However, in his original complaint, Plaintiff stated the June 22, 2016 ticket accused him
of “talking loudly and yelling after being told three times to hold down the noise.”
(Comp., p. 6).
Plaintiff says both the false ticket and transfer were retaliatory actions based on
Plaintiff’s emergency grievance. Again, for the purposes of notice pleading, Plaintiff has
articulated a First Amendment retaliation claim against Defendant Riley based on the
disciplinary ticket and transfer.
However, the Court notes in his previous complaint, Plaintiff made reference to a
variety of disciplinary tickets he received before his transfer. See July 10, 2018 Merit
Review Order. Based on his amended complaint, Plaintiff must be able to demonstrate
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he was transferred based on one “false “ticket accusing him of talking loudly. (Amd.
Comp., p. 7). In addition, it is doubtful Officer Riley had the authority to approve
Plaintiff’s transfer, but Plaintiff has failed to clearly identify anyone else who might be
responsible for this action.
In fact, Plaintiff has failed to explain the involvement of any other named
Defendant in his amended complaint. The only mention of the other named
Defendants is in the caption and the list of Defendants. See Potter v Clark, 497 F.2d 1206,
1207 (7th Cir. 1974)(“Where a complaint alleges no specific act or conduct on the part of
the defendant and the complaint is silent as to the defendant except for his name
appearing in the caption, the complaint is properly dismissed, even under the liberal
construction to be given pro se complaints.”). Therefore, the Court will dismiss all
Defendants except Defendants Lawrence and Riley.
Finally, the Plaintiff’s two surviving claims concern unrelated matters and
different defendants that cannot be litigated in the same lawsuit pursuant to Federal
Rules of Civil Procedure 18 and 20. In George v. Smith, 507 F.3d 605, 607, (7th Cir. 2007),
the court of appeals held that a prison may not “dodge” the fee payment or three strikes
provisions in the Prison Litigation Reform Act by filing unrelated claims against
different defendants in one lawsuit. “[M]ultiple claims against a single party are fine,
but a Claim A against Defendant 1 should not be joined with unrelated Claim B against
Defendant 2.” Id. at 606.

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Since the Plaintiff could face statute of limitations issues if the Court dismissed
one of his claims, the Court will allow Plaintiff to proceed with his excessive force claim
against Defendant Lawrence in this lawsuit and a new lawsuit will be opened for
Plaintiff’s retaliation claim against Defendant Riley. Plaintiff must either pay the filing
fee or file a new motion to proceed in forma pauperis in his second lawsuit within 21
days. If Plaintiff does not wish to pursue either lawsuit, he may file a motion to
voluntarily dismiss within 21 days, and the Court will dismiss that lawsuit and waive
the filing fee. If Plaintiff takes no action, his case will be dismissed and Plaintiff will be
responsible for both filing fees. Plaintiff is reminded he must include a case number for
any filing with this Court.
IT IS THEREFORE ORDERED:
1) Pursuant to its merit review of the amended complaint under 28 U.S.C. §
1915A, the Court finds the Plaintiff alleges Defendant Lawrence used excessive
force on June 15, 2016 when he hit Plaintiff on the back. The claim is stated
against the Defendant in his individual capacities only. 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

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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 service 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 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 Order. In general, an
answer sets forth Defendants' positions. The Court does not rule on the merits of

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those positions unless and until a motion is filed by Defendants. Therefore, no
response to the answer is necessary or will be considered.
6) Once counsel has appeared for a Defendant, Plaintiff need not send copies of
his filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will
file Plaintiff's document electronically and send a notice of electronic filing to
defense counsel.

The notice of electronic filing shall constitute service on

Defendants pursuant to Local Rule 5.3. If electronic service on Defendants is not
available, Plaintiff will be notified and instructed accordingly.
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 or phone number will result in dismissal of this lawsuit,
with prejudice.
9) 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.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) Grant Plaintiff’s motion for leave to file an amended complaint, [11]; 2)
Dismiss all Defendants except Defendants Lawrence for failure to state a claim
upon which relief can be granted pursuant to by 28 U.S.C. §1915A or improper
joinder; 3) Attempt service on Defendants Lawrence pursuant to the standard
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procedures; 4) set an internal court deadline 60 days from the entry of this
order for the court to check on the status of service and enter scheduling
deadlines; 5) enter the Court's standard qualified protective order pursuant to
the Health Insurance Portability and Accountability Act; 6) Open a separate
lawsuit for Burch v. Riley and enter this text order in the new case. The only
Defendant in the new lawsuit is Officer Riley.
ENTERED this 29th day of November, 2018.

s/James E. Shadid
____________________________________________
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE

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