Lee v. Hart et al

Filing 4

MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 09/16/2014. Rule 16 Deadline 11/17/2014. The clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The pe tition to proceed in forma pauperis 3 is granted. The clerk is directed to terminate defendants Warden Hare, Lieutenant Cason, and Head Counselor Carl Clark. The clerk is directed to attempt service on the remaining defendants pursuant to the standard procedures.(LN, ilcd)

E-FILED

Tuesday, 16 September, 2014 12:58:35 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
LINCOLN LEE,
Plaintiff,
v.
. HART, et al.,
Defendants.

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Case No. 14-CV-4065

MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se and currently on parole, has filed this lawsuit
pursuant to 42 U.S.C. § 1983 and is requesting leave to proceed in forma pauperis.
The plaintiff states in his application to proceed in forma pauperis that he was
recently released from the Illinois Department of Corrections and has no income, nor
has he had any income in the past 12 months. He has no money in a checking or
savings account and owns no valuable property. Therefore, the Court agrees that the
plaintiff is unable to pay the costs of commencing this action and his motion to proceed
in forma pauperis is granted.
This case is now before the Court for a merit review pursuant to 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). 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 his claims to the court.
The plaintiff alleges that, on October 30, 2013, when he was incarcerated in East
Moline, he went to the prison administration building to attend a telephone status
hearing in one of his civil cases. Counselor Hart allegedly became irate and told the
plaintiff to leave because the plaintiff had filed grievances, slamming the plaintiff's arm
in the door as the plaintiff tried to gather his papers. Warden Hare allegedly witnessed
this but did nothing. Nurse Jane Doe allegedly failed to x-ray the plaintiff's arm or
provide pain medicine or other treatment to the plaintiff's arm. The plaintiff claims
Warden Hare and Counselor Carl Clark are allegedly responsible because they failed to
intervene. Lieutenant Cason allegedly influenced the nurse's decision by making fun of
the plaintiff.
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The Court concludes that the plaintiff has stated claims of excessive force and
retaliation for filing grievances against defendant Hart and a claim of deliberate
indifference to a serious medical need against Nurse Jane Doe. However, defendants
Warden Hare, Counselor Clark, and Lieutenant Cason are not responsible for the
constitutional misconduct of others so they must be dismissed. Accordingly, this case
will be sent for service on the claims stated below.
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 violation against defendant
Hart for excessive force and against Nurse Jane Doe for deliberate indifference to a
serious medical need, and a First Amendment retaliation claim against defendant Hart.
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 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
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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.
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 petition to proceed in forma pauperis (#3) is granted.

12)
The clerk is directed to terminate defendants Warden Hare, Lieutenant
Cason, and Head Counselor Carl Clark.

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13)
The clerk is directed to attempt service on the remaining defendants
pursuant to the standard procedures.
ENTERED this 16th day of September, 2014.
/s/ Harold A. Baker
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE

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