Winston v. Moody
Filing
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OPINION (See Written Opinion): The Clerk is directed to attempt service on Defendants pursuant to the standard procedures. Entered by Judge Sue E. Myerscough on 5/26/2016. (VM, ilcd)
E-FILED
Thursday, 26 May, 2016 11:38:15 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
ANDREW WINSTON,
Plaintiff,
v.
TODD S. MOODY,
Defendants.
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16-CV-4004
OPINION
Plaintiff, proceeding pro se and detained in the Rushville
Treatment and Detention Center, seeks leave to proceed in forma
pauperis.[2]
The "privilege to proceed without posting security for costs and
fees is reserved to the many truly impoverished litigants who,
within the District Court's sound discretion, would remain without
legal remedy if such privilege were not afforded to them." Brewster
v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972).
Additionally, a court must dismiss cases proceeding in forma
pauperis "at any time" if the action is frivolous, malicious, or fails to
state a claim, even if part of the filing fee has been paid. 28 U.S.C.
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§ 1915(d)(2). Accordingly, this Court grants leave to proceed in
forma pauperis only if the complaint states a federal claim.
In reviewing the complaint, the Court accepts the factual
allegations as true, liberally construing them in 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)(quoted
cite omitted).
ALLEGATIONS
Plaintiff’s complaint is somewhat difficult to decipher, but
Plaintiff clearly alleges Therapist Defendant Moody has retaliated
against him for a previous lawsuit and “grievances.” (Comp., p. 2).
Specifically, Plaintiff says Defendant Moody wrote a false incident
report on November 23, 2015, claiming Plaintiff had not completed
his “tactic group” session. (Comp., p. 5). The hearing committee
ultimately dismissed the claim. Plaintiff also alleges Defendant
Moody retaliated when he refused to move Plaintiff to another
therapist’s caseload which allowed Moody to continue to put
negative and damaging comments in Plaintiff’s casefile.
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Plaintiff alleges Defendant Moody has also violated his privacy
and First Amendment rights due to Moody’s refusal to move Plaintiff
to a new therapist. Plaintiff says he has the “right to be left alone”
and “eliminate everything, person that is not supportive or that is
not elevating and constructive, and the right to choose who he
confides in or talks to…” (Comp, p. 7).
ANALYSIS
Plaintiff has adequately alleged Defendant Moody violated his
First Amendment rights when he retaliated against Plaintiff for his
previous grievances and lawsuit. Specifically, Moody wrote a false
disciplinary ticket and refused to reassign Plaintiff to a new
therapist to allow the Defendant to continue to write damaging
comments in Plaintiff’s casefile.
However, the Plaintiff has not clearly stated any other First
Amendment or other constitutional violation based on his
allegations. Plaintiff is civilly detained in the Rushville Treatment
and Detention Center pursuant to the Illinois Sexually Violent
Persons Commitment Act, 725 ILCS 207/1, et seq. Plaintiff does
not allege he was denied medical or mental health care, and
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Plaintiff does not have a constitutional right to choose a particular
therapist or counselor.
MOTION TO CONSOLIDATE
Plaintiff has also filed a motion asking the Court to consolidate
this case with his other pending lawsuit, Winston v. Jackson, Case
No. 15-3126 (herein “Case 15-3126”). Plaintiff says Moody is
named as a Defendant in both actions.[6] The Federal Rules of Civil
Procedure allows the Court to consider consolidating cases if they
involve a “common question of law or fact.” Fed.R.Civ.P 42(a).
The Plaintiff has one surviving claim in Case No. 15-3126
alleging Defendant Moody and Defendant Sharlene Caraway
violated his Fourteenth Amendment right when they were
deliberately indifferent to a serious medical condition. Plaintiff
claimed the two Defendants “failed to conduct an appropriate
treatment assessment prior to placing Plaintiff into his assigned
treatment group,” and showed a “lack of concern regarding
Plaintiff's treatment plan, and, therefore, are depriving Plaintiff of
necessary treatment to aid his rehabilitation.” October 5, 2015
Opinion, p. 3. The time period of Plaintiff’s allegations is not
entirely clear, but he filed his complaint in Case No. 15-3126 on
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April 29, 2015. Discovery has already begun and is scheduled to
end on July 15, 2016. See Case No 15-3126, August 15, 2015
Scheduling Order.
Although the Plaintiff’s claims involve one of the same
Defendants, the two cases do not involve the same time period,
facts, or issues of law. In addition, the Defendants have not been
served in this case, and Case No 15-3126 is already in the discovery
period. Therefore, the motion is denied.[6]
IT IS ORDERED:
1.
Plaintiff's petition to proceed in forma pauperis is granted
[2]. Pursuant to a review of the Complaint, the Court finds that
Plaintiff alleges Defendant Todd S. Moody violated his First
Amendment right when he retaliated against Plaintiff by writing a
false disciplinary ticket and refusing to reassign Plaintiff to another
therapist’s caseload so Moody could continue to write negative
comments in the casefile. This case proceeds solely on the claims
identified in this paragraph. 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.
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2.
This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for the Defendant before
filing any motions, in order to give Defendant notice and an
opportunity to respond to those motions. Motions filed before
Defendant’s counsel has filed an appearance will generally be
denied as 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 Defendant by sending
each Defendant a waiver of service. Defendant has 60 days from
the date the waiver of service is sent to file an Answer. If Defendant
has 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 counsel has appeared for Defendant, the
Court will enter a scheduling order setting deadlines for discovery
and dispositive motions.
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
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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.
Defendant shall file an answer within 60 days of the day
the waiver of service 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.
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 Defendant is hereby granted leave to depose
Plaintiff at Plaintiff's place of confinement. Counsel for Defendant
shall arrange the time for the deposition.
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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.
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.
Marshal's 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 Defendants
pursuant to the standard procedures.
ENTERED: May 26, 2016
FOR THE COURT:
s/ Sue E. Myerscough
___________________________________
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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