Lard v. Fisher
Filing
6
MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 4/15/2015. ( Rule 16 Deadline 6/15/2015.) This case is now in the process of service. The clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The clerk is directed to add Correctional Officer Roarke and John L. McGehee, State's Attorney of Rock Island County, as defendants in this case. The clerk is directed to attempt service on the defendants pursuant to the standard procedures. (LN, ilcd)
E-FILED
Wednesday, 15 April, 2015 03:35:39 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JESSE T. LARD,
Plaintiff,
v.
CAPTAIN FISHER, et al.,
Defendants.
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15-4017
MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se and currently a pretrial detainee in the Rock Island
County Jail is requesting leave to proceed in forma pauperis. Plaintiff indicated in open
court that he has no funds to make an initial payment of the filing fee, nor does he have
any means to receive funds since he is incarcerated. Therefore, the court granted
plaintiff’s petition to proceed in forma pauperis (#2).
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). 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 filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging that legal mail
from his attorney regarding his state court case was opened when he received it at the
Rock Island Jail. Plaintiff claims when he asked Correctional Officer Roarke and Caption
Fisher about the opened mail, Captain Fisher told him the state’s attorney had opened his
mail.
There is no constitutional violation if the legal mail opened was simply an order
from a court. Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th Cir. 1996)(“prison employees
can open official mail sent by a court clerk to an inmate without infringing on any privacy
right.”); Keenan v. Hall, 83 F.3d 1083, 1094 (9TH Cir. 1996) (mail from the courts, as
contrasted to mail from a prisoner’s lawyer, is not legal mail”). However, if the mail was
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privileged correspondence from his counsel, there may have been a violation of plaintiff’s
constitutional rights. Sallier v. Brooks, 343 F.3d 868, 877 (6th Cir. 2003)(“Although courts
in other circuits have embraced varying definitions of “legal mail,” there is general
agreement that mail from a prisoner’s attorney is always included in such a definition”).
The court concludes that the plaintiff has stated a valid claim for federal relief, and
the case will proceed accordingly.
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 a Fourteenth Amendment violation for interfering with
prisoner’s legal mail. 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.
6.
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.
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7.
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.
8.
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.
9.
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.
10.
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).
11.
The clerk is directed to enter the standard qualified protective order
pursuant to the Health Insurance Portability and Accountability Act.
12.
The clerk is directed to add Correctional Officer Roarke and John L.
McGehee, State’s Attorney of Rock Island County, as defendants in this case.
13.
The clerk is directed to attempt service on the defendants pursuant to the
standard procedures.
Entered this 15th day of April, 2015.
/s/Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE
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