Kiger v. Scott et al
Filing
6
MERIT REVIEW OPINION (Rule 16 Deadline 3/13/2017). Plaintiff's petition to proceed in forma pauperis is granted 2 . This case proceeds solely on the claims identified in this paragraph against Defendants Reinhardt, McCullough, STA #3, and STA #4. 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 attempt service on Defendants pursuant to the standard procedures. Entered by Judge Sue E. Myerscough on 1/10/2017. (SEE Written Opinion). (ME, ilcd)
E-FILED
Tuesday, 10 January, 2017 03:07:26 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
GREG KIGER,
Plaintiff,
v.
GREGG SCOTT, THOMAS
REINHARDT, MATTHEW
MCCULLOUGH, STA #3,
AND STA #4,
Defendants.
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16-CV-4197
MERIT REVIEW OPINION
Plaintiff, proceeding pro se and detained in the Rushville
Treatment and Detention Center, seeks 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).
Additionally, a court must dismiss cases proceeding in forma
pauperis "at any time" if the action is frivolous, malicious, or fails to
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state a claim, even if part of the filing fee has been paid. 28 U.S.C.
§ 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).
Plaintiff alleges that Defendant Reinhardt, a security officer at
Rushville, conducted an unnecessary pat down search of Plaintiff
on September 14, 2016, in a sexually harassing and demeaning
manner. Defendant Reinhardt allegedly rubbed Plaintiff’s body,
including “squeezing and fondling Plaintiff’s penis” in the middle of
the dayroom, while making statements implying that Plaintiff was
gay and “enjoying [Plaintiff’s] roommate as [Plaintiff] did the others.”
(Compl. para. 9.) Defendant McCullough and two unidentified
security officers watched this whole incident and failed to intervene.
After, Plaintiff “complained bitterly,” which allegedly led to
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retaliation in the form of the confiscation of Plaintiff’s DVD/VCR,
gaming system, and religious DVD/CDs. (Compl. para. 10.)
These allegations state plausible claims for an
unconstitutional body search, failure to intervene to stop that
unconstitutional search, and retaliation for Plaintiff’s exercise of his
First Amendment right to report and seek redress for the
unconstitutional search. This case will proceed to service per the
standard procedures against Defendants Reinhardt, McCullough,
and the two unidentified security guards. Plaintiff will be
responsible for identifying the security guards after Defendants
have been served.
No claim is stated on these allegations against Defendant
Scott, the facility’s Director. Scott cannot be held liable for his
subordinate’s constitutional violations solely because Scott is in
charge. Kuhn v. Goodlow, 678 F.3d 552. 556 (7th Cir. 2012)( "'An
individual cannot be held liable in a § 1983 action unless he caused
or participated in an alleged constitutional deprivation.'")(quoted
cite omitted); Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th
Cir. 2001)(no respondeat superior liability under § 1983). No
inference arises from these allegations that Scott played any part in
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the search or condoned the manner in which the search was
allegedly conducted. Defendant Scott will be dismissed, without
prejudice. Matthews v. City of East St. Louis, 675 F.3d 703, 708
(7th Cir. 2012)(“To show personal involvement, the supervisor must
‘know about the conduct and facilitate it, approve it, condone it, or
turn a blind eye for fear of what they might see.’”)(quoted cite
omitted).
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 states federal constitutional claims for an unconstitutional
body search, the failure to intervene to stop that unconstitutional
search, and for retaliation for Plaintiff’s exercise of his First
Amendment right to report and seek redress for the
unconstitutional search. This case proceeds solely on the claims
identified in this paragraph against Defendants Reinhardt,
McCullough, STA #3, and STA #4. 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 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.
3.
The Court will attempt service on Defendants by sending
each Defendant a waiver of service. Defendants have 60 days from
the date the waiver of service 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 counsel has appeared for
Defendants, 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.
Defendants 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 Defendants is hereby granted leave to depose
Plaintiff at Plaintiff's place of confinement. Counsel for Defendants
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: 1/10/2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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