Grant v. Hankins et al

Filing 9

MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 3/3/2017. The Plaintiff's petition to proceed in forma pauperis is granted, d/e 3 . The Plaintiff's motion for the Court to request counsel to voluntarily represent him is denied, d/e 5 . This case is now in the process of service. HIPAA ORDER to enter. (Rule 16 Deadline 5/2/2017) (MAS, ilcd)

E-FILED

Friday, 03 March, 2017 12:58:58 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
CARL LEE GRANT,
Plaintiff,
v.
JOSEPH HANKINS, et al.,
Defendants.

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17-CV-4019

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 during a search of his room on June 13,
2016, his property was thrown about and torn up, and that
property was wrongfully confiscated, including ten batteries in a
“crochet knit bag.” Plaintiff was then forced to wear small
handcuffs even though he was recovering from wrist surgery.
Plaintiff was found guilty of possessing dangerous and/or
unauthorized contraband. Plaintiff alleges he received a harsher
punishment for his purported infraction than white residents have
received for similar infractions.
On these allegations, the Court cannot rule out possible
constitutional claims. However, the Court will wait to delineate
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those claims until the record is developed further. At this point the
Court concludes only that Plaintiff’s complaint should be sent for
service pursuant to the standard procedures. Defendants may file a
motion to dismiss as a responsive pleading if they wish.
IT IS ORDERED:
1.

Plaintiff's petition to proceed in forma pauperis is granted

2.

This case is now in the process of service. Plaintiff is

(3).

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.

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.

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6.

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.
7.

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.
8.

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).
9.

Plaintiff's motion for the Court to request counsel to

voluntarily represent him is denied (d/e 5). The Court does not
have the authority to require an attorney to accept pro bono
appointment on a civil case such as this. Pruitt v. Mote, 503 F.3d
647, 653 (7th Cir. 2007). The most the Court can do is ask for
volunteer counsel. In determining whether the Court should
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attempt to find an attorney to voluntarily take the case without pay,
the question is “given the difficulty of the case, does the plaintiff
appear competent to litigate it himself?" Pruitt, 503 F.3d at 654-55
(7th Cir. 2007). On this record, Plaintiff appears competent to
proceed pro se. His pleadings adequately convey the factual basis
for his claims, and he should have personal knowledge of many of
the relevant facts underlying his claims. Plaintiff may renew his
motion on a more developed factual record, setting forth his
educational level, any jobs he has had inside or outside of prison,
any classes he has taken in prison, and his litigation experience in
state and federal court.
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: March 3, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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