Barrett v. Scott et al
MERIT REVIEW OPINION Entered by Judge Harold A. Baker on 5/10/2017. See written Order. 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 the defendants pursuant to the standard procedures.Plaintiffs motion to proceed in forma pauperis (#3) is granted. Plaintiffs motion to describe how each defendant is involved in the constitutional violation of rights (#6) and motion to declare civil complaint under penalty of perjury (#9) are denied. Clerk is directed to modify the docket as follows: Rehabilitation Director shall be John Doe Rehabilitation Director. Once Plaintiff identifies the name of this individual, he must file a motion to substitute the correct name for this defendant. (ED, ilcd)
Wednesday, 10 May, 2017 03:56:52 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
DONNIE R. BARRETT,
GREGG SCOTT, et al.,
MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se, a civil detainee at the Rushville Treatment and
Detention Facility (“Rushville”) is requesting leave to proceed under a reduced
payment procedure for indigent plaintiffs who are institutionalized but are not
prisoners as defined in 28 U.S.C. Section 1915(h).
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 Circ. 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. § 1915(d)(2). Accordingly, this court grants leave to proceed in
forma pauperis only if the complaint states a federal action.
In reviewing the Complaint, the Court accepts the factual allegations as true,
liberally construing them in the 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)(citation omitted).
The plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging that
Rushville officials have denied him all treatment and educational opportunities because
the mother of a victim in his underlying sex case conviction works as a security therapy
aide at the facility. Plaintiff stated that he is isolated to one pod, unable to have library
access, and that the Warden and other officials won’t even speak to him.
As a civil detainee, plaintiff’s constitutional rights are derived from the Due
Process Clause of the Fourteenth Amendment. See, e.g., Kingsley v. Hendrickson, ----- U.S.
-----, 135 S.Ct. 2466, 2475 (2015); Budd v. Motley 711 F.3d 840, 842 (7th Cir. 2013).
However, the Seventh Circuit has “found it convenient and entirely appropriate to
apply the same standard to claims arising under the Fourteenth Amendment
(detainees) and Eighth Amendment (convicted prisoners) ‘without differentiation.’”
Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) quoting Henderson v. Sheahan, 196 F.3d
839, 845 n.2 (7th Cir. 1999).
Plaintiff states claims for deliberate indifference to a serious mental health need
as his allegations suggest that TDF officials are denying him treatment for
impermissible reasons. The case will proceed accordingly.
IT IS THEREFORE ORDERED:
Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the
Court finds that the plaintiff states a Fourteenth Amendment Due Process claim for
deliberate indifference to a serious mental health need against all defendants. 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
This case is now in the process of service. The plaintiff is advised to wait
until counsel has appeared for the defendants before filing any motions, in order to give
the 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. The plaintiff need not submit any evidence to the Court at this time, unless
otherwise directed by the Court.
The Court will attempt service on the defendants by mailing each
defendant a waiver of service. The defendants have 60 days from the date the waiver is
sent to file an answer. If the defendants have not filed answers or appeared through
counsel within 90 days of the entry of this order, the plaintiff may file a motion
requesting the status of service. After the defendants have been served, the Court will
enter an order setting discovery and dispositive motion deadlines.
With respect to a defendant who no longer works at the address provided
by the 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.
The defendants shall file an answer within 60 days of the date the waiver
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. In general, an answer
sets forth the defendants' positions. The Court does not rule on the merits of those
positions unless and until a motion is filed by the defendants. Therefore, no response to
the answer is necessary or will be considered.
This district uses electronic filing, which means that, after defense counsel
has filed an appearance, defense counsel will automatically receive electronic notice of
any motion or other paper filed by the plaintiff with the Clerk. The plaintiff does not
need to mail to defense counsel copies of motions and other papers that the plaintiff has
filed with the Clerk. However, this does not apply to discovery requests and responses.
Discovery requests and responses are not filed with the Clerk. The plaintiff must mail
his discovery requests and responses directly to defendants' counsel. Discovery
requests or responses sent to the Clerk will be returned unfiled, unless they are attached
to and the subject of a motion to compel. Discovery does not begin until defense
counsel has filed an appearance and the Court has entered a scheduling order, which
will explain the discovery process in more detail.
Counsel for the defendants is hereby granted leave to depose the plaintiff
at his place of confinement. Counsel for the defendants shall arrange the time for the
The plaintiff shall immediately notify the Court, in writing, of any change
in his mailing address and telephone number. The plaintiff's failure to notify the Court
of a change in mailing address or phone number will result in dismissal of this lawsuit,
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. Marshals service on that defendant and will require that
defendant to pay the full costs of formal service pursuant to Federal Rule of Civil
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 the defendants pursuant to the
Plaintiff’s motion to proceed in forma pauperis (#3) is granted.
Plaintiff’s motion to describe how each defendant is involved in the
constitutional violation of rights (#6) and motion to declare civil complaint under
penalty of perjury (#9) are denied. Plaintiff’s motions are an attempt to add facts to his
original complaint and are not an amended complaint. Plaintiff has not provided the
court with a proposed amended complaint and the court does not allow piecemeal
amendments in order to prevent confusion over intended claims and defendants. The
plaintiff is admonished that any motion to amend must first explain why an amended
complaint needs to be filed and how it is different from the current complaint. The
plaintiff must then attach a complete, proposed amended complaint setting forth all
claims and defendants. The amended complaint must not make reference to any
previous complaint or exhibit.
Clerk is directed to modify the docket as follows: “Rehabilitation
Director” shall be “John Doe Rehabilitation Director.” Once Plaintiff identifies the
name of this individual, he must file a motion to substitute the correct name for this
Entered this 10th day of May, 2017.
/s/ Harold A. Baker
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE
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