Croom v. Clague et al
MERIT REVIEW OPINION entered by Judge Michael M. Mihm on 4/15/2016. The clerk is directed to terminate Defendants Messmore and Williamson.The clerk is directed to attempt service on Defendants pursuant to the standard procedures.The Clerk is directe d to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act.Plaintiff's motion for the Court to try to find pro bono counsel to represent him is denied (4), with leave to renew after Pla intiff demonstrates that he has made reasonable efforts to find counsel on his own. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). This typically requires writing to several lawyers and attaching the responses. If Plaintiff renews his motio n, he should set forth how far he has gone in school, any jobs he has held inside and outside of prison, any classes he has taken in prison, and any prior litigation experience he has. Plaintiff's motions for status are denied as moot 8 , 10 and 11 .(Rule 16 Deadline 6/14/2016.) Nate Messmore (SGT) and Jessica Williamson (C/O) terminated. See full written Order. (VH, ilcd)
Friday, 15 April, 2016 01:18:52 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
DAVID CLAGUE, et al.,
MERIT REVIEW OPINION
MICHAEL M. MIHM, U.S. District Judge.
Plaintiff proceeds pro se from his detention in the Knox
County Jail. His Complaint is before the Court for a merit review
pursuant to 28 U.S.C. § 1915A. This section requires the Court to
identify cognizable claims stated by the Complaint or dismiss
claims that are not cognizable.1 In reviewing the complaint, the
Court accepts the factual allegations as true, liberally construing
them in Plaintiff's favor and taking Plaintiff’s pro se status into
account. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013).
However, conclusory statements and labels are insufficient.
A prisoner who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can
no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.” 28
U.S.C. § 1915(g).
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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).
Plaintiff is detained in the Knox County Jail as a pretrial
detainee. He challenges the following rules and conditions at the
jail: being allowed out of his cell only 5 ½ hours per day; no access
to newspapers or magazines; no contact visitation; no copies of any
documents even if a detainee offers to pay (a rule Plaintiff claims
was implemented in retaliation for and to hinder his lawsuits); no
legal resources such as a law library; a rule against guards calling
detainees’ attorneys on behalf of the detainees; and the refusal to
give Plaintiff a rule book.
Plaintiff states an arguable First Amendment claim based on
the rule against newspapers and magazines. See Pell v. Procunier,
417 U.S. 817, 822 (1974)(“[A] prison inmate retains those First
Amendment rights that are not inconsistent with his status as a
prisoner or with the legitimate penological objectives of the
corrections system.”); Koger v. Dart, 114 F.Supp.2d 572 (N.D. Ill.
2015)(holding Cook County Jail’s absolute ban on newspapers
unconstitutional). Additionally, the Court cannot rule out a First
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Amendment claim arising from the no-copy rule, which Plaintiff
asserts was implemented in retaliation for his litigation activities
and to hinder those activities.
However, Plaintiff has no constitutional right to be out of his
cell more than 5 ½ hours per day. See Antonelli v. Sheahan, 81
F.3d 1422, (7th Cir. 1996)(detainee had “no general liberty interest
in movement outside of his cell guaranteed by the Due Process
Clause.”) Additionally, pretrial detainees have no constitutional
right to contact visits. Block v. Rutherford, 468 U.S. 576 (1984).
And, the lack of legal resources at the library does not by itself
violate the Constitution. Lewis v. Casey, 518 U.S. 343, 351
(1996)(The right of access to the courts is not “an abstract
freestanding right to a law library or legal assistance.”). Nor does
the refusal to give Plaintiff a rule book, by itself, produce any
constitutional injury. Lastly, the rule against guards calling
detainees’ attorneys states no discernable constitutional claim. The
rule does not prevent Plaintiff from contacting his attorney, and no
plausible inference arises from the present allegations that Plaintiff
has actually been unable to communicate with his criminal defense
attorney or with any other attorney.
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The two viable First Amendment claims identified above will
proceed against Sheriff Clague, Jail Administrator Glossip, and
Chief of Operations Brad Abernathy. Personal responsibility for the
implementation and enforcement of the rules may be inferred at
this point from these Defendants’ positions. Sergeant Messmore
and Officer Jessica Williamson will be dismissed because they were
allegedly only following orders in enforcing the rules. No plausible
inference arises on the present allegations that Sergeant Messmore
or Officer Williamson have any authority to change the rules or
determine what the rules are.
IT IS THEREFORE ORDERED:
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states First
Amendment claims arising from the alleged ban on newspapers and
magazines and the no-copy rule. 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
Defendants Messmore and Williamson are dismissed,
without prejudice, for failure to state a claim against them.
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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.
This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for Defendants before
filing any motions, in order to give 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. Plaintiff need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.
The Court will attempt service on Defendants by mailing
each Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent to file an Answer. If Defendants have 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 Defendants have been served, the Court will enter
an order setting discovery and dispositive motion deadlines.
With respect to a Defendant who no longer works at the
address provided by Plaintiff, the entity for whom that Defendant
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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.
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 Defendants' positions. The Court does not rule
on the merits of those positions unless and until a motion is filed by
Defendants. Therefore, no response to the answer is necessary or
will be considered.
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 Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
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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. 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.
Counsel for Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the deposition.
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
If a Defendants 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.
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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).
Within 10 days of receiving from Defendants' counsel an
authorization to release medical records, Plaintiff is directed to sign
and return the authorization to Defendants' counsel.
The clerk is directed to terminate Defendants
Messmore and Williamson.
The clerk is directed to attempt service on
Defendants pursuant to the standard procedures.
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
Plaintiff’s motion for the Court to try to find pro
bono counsel to represent him is denied (4), with leave to renew
after Plaintiff demonstrates that he has made reasonable efforts to
find counsel on his own. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th
Cir. 2007). This typically requires writing to several lawyers and
attaching the responses. If Plaintiff renews his motion, he should
set forth how far he has gone in school, any jobs he has held inside
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and outside of prison, any classes he has taken in prison, and any
prior litigation experience he has.
Plaintiff’s motions for status are denied as moot (8, 10,
FOR THE COURT:
s/Michael M. Mihm
MICHAEL M. MIHM
UNITED STATES DISTRICT JUDGE
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