Payne v. Payne

Filing 9

MERIT REVIEW ORDER entered by Judge Harold A. Baker on 7/31/2020. 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 excessi ve force and denial of medical care against Defendant Payne. 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. SEE FULL WRITTEN ORDER.(SAG, ilcd)

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E-FILED

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Friday, 31 July, 2020 11:00:42 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
Warren G. Payne,
Plaintiff,
v.
IDOC, et al.
Defendants.

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20-3166

Merit Review Order
The plaintiff, proceeding pro se, and currently incarcerated at
Shawnee 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).
Plaintiff alleges that Defendant Payne “ramm[ed] his back on a
steel bunk bed” in response to Plaintiff’s request for a crisis team.

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Plaintiff alleges that he was not combative, nor did he otherwise
pose a security threat at that time. Plaintiff alleges that he was
denied medical treatment, and that Defendant Payne later violated
an administrative rule that prohibited him from serving on the
Adjustment Committee during the hearing related to the above
incident.
Plaintiff states Eighth Amendment claims for excessive force
and denial of medical care against Defendant Payne. Petties v.
Carter, 836 F.3d 722, 729-30 (7th Cir. 2016) (en banc); Hudson v.
McMillian, 503 U.S. 1, 6 (1992). Plaintiff does not allege that an
official policy caused his deprivations, and Graham CC are not
proper defendants in Section 1983 lawsuits. Monell v. Dep’t of Social
Srvcs. of City of New York, 436 U.S. 658 (1978); Powell v. Cook
County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (holding the
Cook County Jail was not a person under Section 1983).
Defendants IDOC and Graham CC will be dismissed.
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 excessive force and denial
of medical care against Defendant Payne. 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

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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

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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 terminate IDOC and Graham CC
as defendants.

12.

The clerk is directed to attempt service on Defendant
Payne pursuant to the standard procedures.

13.

Plaintiff filed a Motion to Request Counsel [3]. Plaintiff
has no constitutional or statutory right to counsel in this
case. In considering the Plaintiff’s motion, the court asks:

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(1) has the indigent Plaintiff made a reasonable attempt
to obtain counsel or been effectively precluded from doing
so; and if so, (2) given the difficulty of the case, does the
plaintiff appear competent to litigate it himself? Pruitt v.
Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). Plaintiff has
not satisfied the first prong. A plaintiff usually does this
by attaching copies of letters sent to attorneys seeking
representation and copies of any responses received.
Because Plaintiff has not satisfied the first prong, the
Court does not address the second. Plaintiff’s motion [3]
is DENIED with leave to renew.

Entered this 31st day of July, 2020.

s/ Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE