Smith et al v. Rauner et al

Filing 12

MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 10/12/2016. Plaintiffs' petitions to proceed in forma pauperis 3 and 4 are GRANTED. Plaintiff Smith's Motion for Status 9 is rendered MOOT. Pursuant to a review of the Co mplaint, the Court finds that the Plaintiff states due process and equal protection claims against Defendants Blaesing and Garrett under the Fourteenth Amendment. Defendants Rauner, Dimas, Scott, Clayton and Kunkle are DISMISSED. (SEE WRITTEN OPINION) (MAS, ilcd)

E-FILED

Wednesday, 12 October, 2016 11:00:58 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MICHAEL W. SMITH and
JOSHUA D. WARNER,
Plaintiffs,
v.
BRUCE RAUNER, et al.,
Defendants.

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No.: 16-cv-4089-SEM

MERIT REVIEW ORDER
Plaintiffs, Michael W. Smith and Joshua D. Warner, are civil
detainees at the Rushville Treatment and Detention Center.
Plaintiffs proceed pro se and seek leave to proceed in forma
pauperis. 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). 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 Plaintiffs’ 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

Plaintiffs Michael W. Smith and Joshua D. Warner, are civilly
detained in the Rushville Treatment and Detention Center pursuant
to the Illinois Sexually Violent Persons Commitment Act, 725 ILCS
207/1, et seq. They have filed a complaint alleging that they have
been denied the right to marry. They had written to the Clerk of
Schuyler County, Mindy Garrett, asking for an application for a
marriage license. Ms. Garrett referred them to Defendant Blaesing,
the Quality Assurance Director for Department of Human Services
(“DHS”), indicating that Ms. Blaesing would be able provide them

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with an application. [ECF 1-1 p. 5]. Plaintiffs allege that, despite
repeated requests, no application has been provided.
Plaintiffs cite United States v. Windsor, 133 S.Ct. 2675, 2693
(2013), which held unconstitutional the denial of federal marital
benefits to same-sex marriages recognized under state law.
Plaintiffs request injunctive relief, compelling Defendants DHS
Secretary James Dimas, Rushville Program Director Gregg Scott,
Rushville Security Director James Clayton and Assistant Program
Director Eric Kunkle to draft and implement a same-sex marriage
policy. They request that Defendants Blaesing and Garrett be
compelled to issue them an application for marriage license. They
assert a demand for compensatory and punitive damages against all
Defendants.
ANALYSIS
Punishments which are “incompatible with ‘the evolving
standards of decency that mark the progress of a maturing
society’’’, violate the Eighth Amendment. Estelle v. Gamble, 429
U.S. 97, 102 (1976). In this case, as Plaintiffs are detainees rather
than convicted prisoners, their § 1983 claim is reviewed under the
Due Process Clause of the Fourteenth Amendment, rather than the
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Eighth Amendment. The standard of review, however, is the same
under the Fourteenth Amendment, as under the Eight Amendment.
Zentmyer v. Kendall County, Ill., 220 F.3d 805, 810 (7th Cir. 2000).
The United States Supreme Court has affirmed that those in
the prison context have a constitutional right to a marital
relationship. Turner v. Safley, 482 U.S. 78, 96 (1987). In a more
recent decision, the Supreme Court also found that same-sex
couples have a fundamental right to marry. Obergefell v. Hodges,
135 S. Ct. 2584, 2599 (2015). This right is also recognized by the
forum in which this Court sits as the State of Illinois has codified
the right of same-sex couples to marry in its Religious Freedom and
Marriage Fairness Act. See 750 ILCS 80/1 et seq.:
§ 10. Equal access to marriage.
(a) All laws of this State applicable to marriage,
whether they derive from statute, administrative
or court rule, policy, common law, or any other
source of civil or criminal law, shall apply equally
to marriages of same-sex and different-sex
couples and their children.
The right of prisoners to marry, however, “is subject to
substantial restrictions as a result of incarceration.” Turner at 95.
“[A] prison regulation [that] impinges on inmates' constitutional
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rights ... is valid if it is reasonably related to legitimate penological
interests.” Riker v. Lemmon, 798 F.3d 546, 551 (7th Cir. 2015)
(finding validity of facility’s ban on marriage between inmate and a
former employee a question of fact, precluding summary judgment).
To determine the reasonableness of a regulation, the court
must balance the constitutional right asserted against the
legitimate penological goals of the prison. Id. at 552. See Baskin v.
Bogan, 766 F.3d 648, 659 (7th Cir. 2014 ) cert. denied 135 S. Ct.
316 (2014) (groundless rejection of same-sex marriage is a denial of
equal protection) (emphasis in original). See also, See Keeney v.
Heath, 57 F.3d 579 (7th Cir. 1995) (officials may burden right to
marry where there is penological justification). In Keeney, the
Seventh Circuit found penological justification for a prison’s ban on
romantic relationships between guards and inmates. Id. 581-82.
It is unclear at this point whether Defendants’ apparent
refusal to facilitate the marriage was done pursuant to a legitimate
penological interest. As a result, this claim may go forward.
Plaintiffs have identified various Defendants who do not
appear to have had personal participation in the injury alleged.
They name Governor Bruce Rauner, to whom they sent a letter
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regarding the lack of response to their request for a marriage
license. See Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir.
2003)(individual liability under Section 1983 can only be based
upon a finding that the defendant caused the deprivation alleged).
“To be liable under [Section] 1983, an individual defendant must
have caused or participated in a constitutional deprivation.” Pepper
v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005).
Furthermore, Plaintiffs attempt to assert an action against
DHS Secretary James Dimas, Rushville Program Director Gregg
Scott, Rushville Security Director James Clayton and Assistant
Program Director Eric Kunkle based on the actions of another
detainee who allegedly sent them each a copy of a letter objecting to
the lack of policy regarding same-sex marriage. Here, again,
Plaintiffs fail to allege Defendants personal involvement in the
injury they have suffered. Palmer at 594. See also, Diaz v. McBride,
1994 WL 750707, at *4 (N.D. Ind. Nov. 30,1994) (holding that a
plaintiff could not establish personal involvement, and subject a
prison official to liability under section 1983, merely by sending the
official various letters or grievances complaining about the actions
or conduct of subordinates.) Defendants Rauner, Dimas, Scott,
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Clayton and Kunkle are DISMISSED. This claim will proceed
against Jennifer Blaesing, Rushville Directory of Quality Assurance
and Mindy Garrett Schuyler County Circuit Clerk.
IT IS THEREFORE ORDERED:
1.

Plaintiffs’ petitions to proceed in forma pauperis [3] and

[4], are GRANTED. Plaintiff Smith’s Motion for Status [9] is
rendered MOOT.
2.

Pursuant to a review of the Complaint, the Court finds

that Plaintiff states due process and equal protection claims against
Defendants Blaesing and Garrett under the Fourteenth
Amendment. 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.
Defendants Rauner, Dimas, Scott, Clayton and Kunkle are
DISMISSED.
3.

Any claims not identified will not be included in the case,

except in the Court's discretion upon motion by a party for good
cause shown, or by leave of court pursuant to Federal Rule of Civil
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Procedure 15. The Clerk is directed to send to each Defendant
pursuant to this District's internal procedures: 1) a Notice of
Lawsuit and Request for Waiver of Service; 2) a Waiver of Service; 3)
a copy of the Complaint; and 4) a copy of this Order.
4.

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 on that Defendant
and will require that Defendant pay the full costs of formal service
pursuant to Federal Rule of Civil Procedure 4(d)(2). If a Defendant
no longer works at the address provided by Plaintiff, the entity for
which Defendant worked at the time identified in the Complaint
shall provide to the Clerk Defendant's current work address, or, if
not known, Defendant's forwarding address. This information will
be used only for purposes of effecting service. Documentation of
forwarding addresses will be maintained only by the Clerk and shall
not be maintained in the public docket nor disclosed by the Clerk.
5.

Defendants shall file an answer within the time

prescribed by Local Rule. A Motion to Dismiss is not an answer.
The answer is to include all defenses appropriate under the Federal

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Rules. The answer and subsequent pleadings are to address the
issues and claims identified in this Order.
6.

Plaintiff shall serve upon any Defendant who has been

served, but who is not represented by counsel, a copy of every filing
submitted by Plaintiff for consideration by the Court, and shall also
file a certificate of service stating the date on which the copy was
mailed. Any paper received by a District Judge or Magistrate Judge
that has not been filed with the Clerk or that fails to include a
required certificate of service will be struck by the Court.
7.

Once counsel has appeared for a Defendant, Plaintiff

need not send copies of filings to that Defendant or to that
Defendant's counsel. Instead, the Clerk will file Plaintiff's document
electronically and send notice of electronic filing to defense counsel.
The notice of electronic filing shall constitute notice to Defendant
pursuant to Local Rule 5.3. If electronic service on Defendants is
not available, Plaintiff will be notified and instructed accordingly.
8.

Counsel for Defendants is hereby granted leave to depose

Plaintiff at Plaintiff's place of confinement. Counsel for Defendants
shall arrange the time for the depositions.

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9.

Plaintiff shall immediately notice the Court of any change

in mailing address or phone number. The Clerk is directed to set
an internal court deadline 60 days from the entry of this Order for
the Court to check on the status of service and enter scheduling
deadlines.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) ATTEMPT SERVICE ON DEFENDANTS PURSUANT TO
THE STANDARD PROCEDURES AND
2) SET AN INTERNAL COURT DEADLINE 60 DAYS FROM
THE ENTRY OF THIS ORDER FOR THE COURT TO CHECK ON
THE STATUS OF SERVICE AND ENTER SCHEDULING
DEADLINES.
LASTLY, IT IS ORDERED THAT 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

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THE FULL COSTS OF FORMAL SERVICE PURSUANT TO
FEDERAL RULE OF CIVIL PROCEDURE 4(d)(2).

October 12, 2016
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ENTERED

______s/Sue E. Myerscough_ __
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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