Horne v. Pennock et al
Filing
5
MERIT REVIEW OPINION: This case proceeds. Clerk to enter the standard qualified protective order pursuant to HIPAA and to attempt service on defendants. Rule 16 Deadline set for 4/25/2017. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 02/24/2017. (SKN, ilcd)
E-FILED
Friday, 24 February, 2017 09:37:40 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
THOMAS HORNE,
Plaintiff,
v.
WANDA PENNOCK, et al.,
Defendants.
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16-CV-4271
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
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).
Plaintiff alleges that, on August 12, 2016, Defendants
Pennock and Mayes tried to move Plaintiff to a different housing
unit that would have put Plaintiff at risk of assault from other
residents. Plaintiff alleges Defendants Mayes and Pennock wanted
to separate Plaintiff from another resident so that the two could not
help each other with their lawsuits. Plaintiff refused to move and
was placed on “temporary secure status.” Plaintiff “blew up” and
injured himself when he slammed a drawer against a door. Plaintiff
was taken to the facility doctor, who put a stitch in Plaintiff’s right
eyebrow. Defendants then tried to move Plaintiff to the suicide
watch room, but Plaintiff refused because he was not suicidal, just
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mad. Defendants Wear and Kessler, and perhaps other Defendants,
then unleashed a barrage of excessive force on Plaintiff, including
punching Plaintiff with closed fists on his forehead and trying to
break Plaintiff’s wrist. The rest of Defendants failed to intervene.
Additionally, Plaintiff’s clothes were removed in front of two female
Defendants. Plaintiff has been on lock down ever since, allowed out
of his room only two hours per day with handcuffs, and given no
gym or yard time.
These allegations state plausible constitutional claims for
denial of free speech/association, excessive force, failure to
intervene, and a possible procedural due process claim arising from
Plaintiff’s placement in what appears to be a status akin to
segregation. This case will proceed for service per the standard
procedures.
IT IS ORDERED:
1.
Plaintiff's petition to proceed in forma pauperis is granted
(3). Pursuant to a review of the Complaint, the Court finds that
Plaintiff states the following federal constitutional claims: denial of
free speech/association based on the separation of Plaintiff and
another resident to prevent them from helping each other with their
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legal pursuits; excessive force; failure to intervene, and a possible
procedural due process claim arising from Plaintiff’s placement in
what appears to be a status akin to segregation. 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.
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
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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
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
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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.
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.
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11. The Clerk is directed to attempt service on Defendants
pursuant to the standard procedures.
ENTERED: February 24, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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