Smith et al v. Scott et al

Filing 8

MERIT REVIEW OPINION: Plaintiffs' petition to proceed in forma pauperis are granted ( 3 , 4 ). Pursuant to a review of the Complaint, the Court finds that Plaintiffs state First Amendment free speech and Fourteenth Amendment equal protection c laims. 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. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 4/4/2017. (MJC, ilcd)

E-FILED

Tuesday, 04 April, 2017 04:03:29 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MICHAEL WARREN SMITH
)
and JOSHUA DALE WARNER, )
)
Plaintiffs,
)
)
v.
)
)
GREGG SCOTT and
)
ERIC KUNKLE,
)
)
)
Defendants.
)
)

17-CV-4065

MERIT REVIEW OPINION
Plaintiffs, proceeding pro se and detained in the Rushville
Treatment and Detention Center, 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).
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 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).
Plaintiffs are both detained in the Rushville Treatment and
Detention Center pursuant to the Illinois Sexually Violent Persons
Act. They were allowed to marry each other in a ceremony
conducted at the facility on February 17, 2017. However, pursuant
to a policy instituted by Defendants, they have not been allowed to
possess their wedding photos. Residents are not allowed to possess
pictures of other residents, even if the residents are married to each
other. In contrast, residents who are married to spouses who are
not detained in the facility may possess wedding photos.

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These allegations state plausible First Amendment free speech
and Fourteenth Amendment equal protection claims. The case will
proceed for service per the standard procedures.
IT IS ORDERED:
1.

Plaintiffs’ petition to proceed in forma pauperis are

granted (3, 4). Pursuant to a review of the Complaint, the Court
finds that Plaintiffs state First Amendment free speech and
Fourteenth Amendment equal protection claims. 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. Plaintiffs are

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. Plaintiffs need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.

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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, Plaintiffs 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
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

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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, Plaintiffs

need not send copies of his filings to that Defendant or to that
Defendant's counsel. Instead, the Clerk will file Plaintiffs’ 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, Plaintiffs will be notified and instructed
accordingly.
7.

Counsel for Defendants is hereby granted leave to depose

Plaintiffs at their place of confinement. Counsel for Defendants
shall arrange the time for the deposition.
8.

Plaintiffs shall immediately notify the Court, in writing, of

any change in their mailing addresses and telephone numbers.
Plaintiffs’ 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
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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: April 4, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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