Mitchell v. Schell
Filing
7
MERIT REVIEW ORDER entered by Judge Harold A. Baker on 11/18/2020. 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 an Eighth Amendment claim for excessive force against Defendant Shell. 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
Wednesday, 18 November, 2020 10:03:14 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
Jolly Jay Mitchell,
Plaintiff,
v.
Shell,
Defendant.
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20-3289
Merit Review Order
The plaintiff, proceeding pro se, and currently incarcerated at
Dixon 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 Shell, a correctional major, put
him in a headlock and caused him to lose consciousness. Plaintiff
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alleges that the attack was without justification and that he
suffered neck and back injuries.
Plaintiff states an Eighth Amendment claim for excessive force
against Defendant Shell. Hudson v. McMillian, 503 U.S. 1, 6 (1992).
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
Defendant Shell. 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
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
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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.
The clerk is directed to attempt service on Defendant
Shell pursuant to the standard procedures.
12.
Plaintiff’s Motion to Request Counsel [4] is denied with
leave to renew. Plaintiff has not shown that he made a
reasonable attempt to obtain counsel on his own. Pruitt v.
Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). A plaintiff
usually does this by attaching copies of letters sent to
attorneys seeking representation and copies of any
responses received.
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Entered this 18th day of November, 2020.
s/ Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE
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