Battle v. Wheat et al

Filing 12

MERIT REVIEW AND CASE MANAGEMENT ORDER entered by Chief Judge James E. Shadid on 12/12/2017. IT IS THEREFORE ORDERED: 1) Plaintiff's motion for leave to file a second amended complaint is granted. 9 . 2) Plaintiff's second amended complain t is dismissed with prejudice for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. Section 1915A and for failure to follow Court orders. This case is closed. 3) This dismissal shall count as one of the Plaintiff' s three allotted strikes pursuant to 28 U.S.C. Section 1915(g). The Clerk of the Court is directed to record the Plaintiff's strike in the three-strike log and note Plaintiff now has three strikes. 4) In any future litigation concerning prison conditions in which Plaintiff seeks leave to proceed in forma pauperis, Plaintiff MUST inform the Court in writing of his three strikes status pursuant to §1915(g). 5) If the Plaintiff wishes to appeal this dismissal, he may file a notice of ap peal with this court within 30 days of the entry of judgment. Fed. R. App. P. 4(a). A motion for leave to appeal in forma pauperis MUST set forth the issues the Plaintiff plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C). If the Plaintiff does choose to appeal, he will be liable for the $505 appellate filing fee irrespective of the outcome of the appeal. See full written Order.(VH, ilcd)

E-FILED

Tuesday, 12 December, 2017 03:08:49 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JOVAN MIGUEL BATTLE,
Plaintiff,

JENNY WHEAT, et al.,
Defendants

)
)
)
)
)
)

Case No. 17-4088

MERIT REVIEW AND CASE MANAGEMENT ORDER
This cause before the Court for consideration of Plaintiff’s second motion for
leave to file an amended complaint. [9]
Plaintiff, a pro se prisoner, filed his original 25 page complaint with 42 pages of
exhibits. [1] One month later, Plaintiff filed a motion for leave to amend his complaint.
[6]. Plaintiff’s first motion for leave to amend included an additional 56 pages of
exhibits, but it did include a proposed complaint. Therefore, the Court dismissed the
motion for leave to amend, and instead considered the claims in the original complaint.
See September 21, 2017 Merit Review Order.
Plaintiff alleged eight Defendants at the East Moline Correctional Center (EMCC)
violated his First Amendment rights when they denied him meaningful access to the
Courts. However, the Court was unable to decipher Plaintiff’s specific claim. See
September 21, 2017 Merit Review Order.
For instance, Plaintiff alleged he missed a filing deadline in another Central
District of Illinois case. However, a review of the docket in that lawsuit found there

1

was no such deadline, and the case was not dismissed until after Plaintiff filed this
lawsuit. See September 21, 2017 Merit Review Order, p. 2-3.
Plaintiff also alleged he missed a deadline in a class action lawsuit in which he
was represented by counsel. However, it was unclear how Defendants interfered with
Plaintiff’s litigation when he admitted he was represented by counsel who was
responsible for those deadlines. See September 21, 2017 Merit Review Order, p. 3.
Plaintiff also made vague reference to problems obtaining legal envelopes and
the inadequacy of the law library, but he failed to articulate a constitutional violation
and he failed to allege how any of the named Defendants were involved in his claims.
See September 21, 2017 Merit Review Order, p. 3-4.
Therefore, the Court dismissed Plaintiff’s complaint for failure to state a claim
upon which relief could be granted, but allowed Plaintiff additional time to file a
second amended complaint clarifying his claims. Plaintiff was also provided
instructions to assist him. For instance, Plaintiff was directed to provide numbered
paragraphs.
For each paragraph, Plaintiff must state what specific claim he was
prevented from pursuing, how he was hindered from pursing his
claim, approximately when it occurred, and how an Defendant was
involved. For instance, if Plaintiff was denied relevant case law, he
must state when he requested assistance, who denied assistance, and
how the denial specifically impacted his claim. September 21, 2017 Merit
Review Order, p. 4.
Plaintiff was further admonished in order to state a constitutional violation, a
complaint “must spell out, in minimal detail, the connection between the alleged denial
of access to legal materials and an inability to pursue a legitimate challenge to a
2

conviction, sentence, or prison conditions.” September 21, 2017 Merit Review Order, p.
2 quoting Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009).
Plaintiff has now filed his motion for leave to file a second amended complaint
which is granted pursuant to Federal Rule of Civil Procedure 15. [9].
The Court is still required by 28 U.S.C. §1915A to “screen” the Plaintiff’s second
amended complaint, and through such process to identify and dismiss any legally
insufficient claim, or the entire action if warranted. A claim is legally insufficient if it
“(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C.
§1915A.
Plaintiff’s second amended complaint identifies eight Defendants including
Education Department Supervisor Jenny Wheat, Former Librarian Joshua Baker,
Warden Christine Brannon, Administrator Jason Garza, “Warden of Programs” Jane
Doe, Administrator Todd Jackson, the East Moline Correctional Center, and the Illinois
Department of Corrections. Plaintiff says he is suing pursuant to 42 U.S.C. §1983 for
violations of his Fourteenth Amendment and First Amendment rights “as well as a true
deliberate indifference as well (prison condition).” (Sec. Amd. Comp., p. 1).
The Court notes throughout his complaint, Plaintiff alleges Defendants Wheat,
Battle, Brannon, Jackson, and Garza either failed to properly respond to his grievances,
lied in relation to his grievances, or ignored his grievances. None of these claims clearly
state a constitutional violation.

3

“Prison grievance procedures are not mandated by the First Amendment and do
not by their very existence create interests protected by the Due Process Clause” of the
Fourteenth Amendment. Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir.2011) (citations
omitted). The Constitution requires no procedure at all, and the failure of state prison
officials to follow their own procedures does not, standing alone, violate the
Constitution. Maust v. Headley, 959 F.2d 644, 648 (7th Cir.1992); Shango v. Jurich, 681 F.2d
1091, 1100–01 (7th Cir.1982). Therefore, the alleged mishandling of grievances does not
state a claim for relief.
Plaintiff alleges Defendant Jenny Wheat “played a role in fully denying my ‘case
laws’ at my requests,” left him off the list for law library time, did not re-hire law
library personnel, did not allow the proper time limits in the law library, and denied
Plaintiff access to a book on federal procedures. (Sec. Amd. Comp., p. 12).
Despite the Court’s clear admonition, Plaintiff has still failed to point to any
specific legal claim he was prevented from pursuing due to any action by Defendant
Wheat. The only detailed information alleged is Plaintiff missed an unspecified
deadline in a case he had with a law firm in New York, but Plaintiff provides no further
information. Again, Plaintiff’s lawyer would be responsible for meeting court
deadlines. Plaintiff has failed to allege how Defendant Wheat violated his
constitutional rights.
Plaintiff next alleges Defendant Baker denied his case law requests for months
and did not bring him copies of unspecified documents or books. Defendant Baker

4

further denied an unspecified Freedom of Information Act (FOIA) request which
prevented Plaintiff from obtaining evidence in Battle v Luster, Case No. 16-cv-9767.
This is a different case than Plaintiff mentioned in his first complaint. The Court
takes judicial notice that Battle v Luster, Case 16-9767, is currently pending in the United
States District Court for the Northern District of Illinois, and no dispositive motions
have been filed. See Battle v Luster, Case No. 16-9767. Therefore, Defendant Baker did
not prevent Plaintiff from pursuing his claim and Plaintiff has failed to articulate a
constitutional violation.
Plaintiff alleges Defendant Jackson did not establish an appropriate legal mailing
system within EMCC and the Defendant denied a request pursuant to the FOIA.
Plaintiff provides details to explain his claims further, and he fails to point to any
specific legal claim he was unable to pursue as a result of Defendant Jackson’s actions.
Plaintiff also makes vague reference to retaliation for his previous lawsuits and
grievances, but again, Plaintiff does not provide specific times, dates, or retaliatory acts.
In addition, Plaintiff did not list retaliation as one of his intended claims. (Sec. Amd.
Comp., p. 1).
Plaintiff repeats several of the same vague allegations against Defendants Garza,
Brannon, and Doe. For instance, Plaintiff says he was denied case law, denied FOIA
requests, denied evidence, a new law librarian was not hired, law library hours were
cut, and the Defendant had an “unreliable” system for legal envelopes. (Sec. Amd.
Comp., p. 14). Plaintiff provides no specific dates, events, or legal claims he was
prevented from pursuing.
5

Finally, Plaintiff makes referenced to vague “mail room Defendants” which are
not identified in his list of Defendants. (Sec. Amd. Comp., p. 16). Plaintiff says he
continues to receive his legal mail late. Plaintiff cites to only one specific example.
Plaintiff received a letter in February which was dated in December from a “’class
action’ Risperdol” case in New York. (Sec. Amd. Comp., p. 16). Plaintiff has again
failed to explain how he was prevented from pursuing a claim. Plaintiff’s own pleading
indicates it is a class action with counsel representing the class.
Plaintiff is an experienced litigator. See Battle v. Johnson, Case No. 16-4260; Battle
v. Garza, Case No. 17-4028; Battle v Jackson, Case No. 17-4048; and Battle v Wheat, Case
No. 17-4075 in the Central District of Illinois; Battle v Dart, Case No. 12-2885; Battle v
Cook County Facility, Case No. 12-3962; Battle v Jones, 16-2474; Battle v. Cook County
Cermak Staffing, Case No. 12-2552; Battle v. William, Case No. 12-3546; Battle v Cook
County Warden, Case No. 13-7778; Battle v. Anderson, Case No. 16-5749; Battle v. Brewer,
Case No. 16-5957; Battle v. Luster, Case No. 16-9767; Battle v. Luster, Case No. 17-2176;
Battle v. Pfister, Case No. 17-6338; Battle v. Pfister, Case No. 17-6928 in the Northern
District; and Battle v. Smoot, Case No. 17-1165 in the Southern District.
Nonetheless, despite the Court’s specific admonitions and directions, the
Plaintiff’s second amended complaint again fails to provide specific dates and events,
and fails to state how any Defendant’s actions led to “an inability to pursue a legitimate
challenge to a conviction, sentence, or prison conditions.” Ortiz v. Downey, 561 F.3d 664,
671 (7th Cir. 2009).

6

In addition, while Plaintiff mentions deliberate indifference based on prison
conditions, he has failed to allege any facts in support of this claim in his second
amended complaint. Therefore, the Court must dismiss Plaintiff’s complaint for failure
to state a claim upon which relief can be granted.
The Court previously advised Plaintiff of the specific deficiencies in his
complaint, and warned Plaintiff he would be given one final opportunity to clarify his
claims or “his case will be dismissed and he will be accessed an additional “strike”
pursuant to 28 U.S.C. § 1915(g).” September 21, 2017 Merit Review Order, p. 5.
Based on the Court’s specific admonitions and Plaintiff’s pleading, the Court
does not believe Plaintiff can state a constitutional violation if given another
opportunity to amend. See Stanard v. Nygren, 658 F.3d 792, 801 (7th Cir. 2011)(leave to
replead will not be allowed after “repeated failure to cure deficiencies by amendments
previously allowed.”); Lyon v. Brown, 1998 WL 246685 at 2 (7th Cir. May 12, 1998)
(dismissed after court allowed plaintiff third opportunity to cure specific deficiencies
and warned final opportunity to correct deficiencies). This case is closed.
Since Plaintiff filed his original complaint in this case, he has now accumulated
more than three strikes pursuant to 28 U.S.C. §1915(g). See Battle v Cook County Facility,
Case No. 12-3962 (N.D. 7/6/12 strike); Battle v Cook County Warden, Case No. 137778(N.D. 11/14/13 strike); Battle v. Garza, Case No. 17-4028 (C.D. 4/3/17 strike) and
Battle v Wheat, Case No. 17-4075 (C.D. 5/18/17 strike). This statute provides:
In no event shall a prisoner bring a civil action or appeal a judgment in
a civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any facility, brought
7

an action or appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent danger of serious
physical injury. See 28 U.S.C. §1915(g).
Therefore, Plaintiff is admonished in any future litigation concerning prison
conditions in which he seeks leave to proceed in forma pauperis, Plaintiff MUST inform
the Court of his three strikes status pursuant to §1915(g). “An effort to bamboozle the
court by seeking permission to proceed in forma pauperis after a federal judge has held
that §1915(g) applies to a particular litigant will lead to immediate termination of the
suit.” Sloan v. Lesza. 181 F.3d 857, 859 (7th Cir. 1999).
IT IS THEREFORE ORDERED:
1) Plaintiff’s motion for leave to file a second amended complaint is granted. [9].
2) Plaintiff’s second amended complaint is dismissed with prejudice for failure to
state a claim upon which relief can be granted pursuant to 28 U.S.C. Section
1915A and for failure to follow Court orders. This case is closed.
3) This dismissal shall count as one of the Plaintiff’s three allotted strikes
pursuant to 28 U.S.C. Section 1915(g). The Clerk of the Court is directed to
record the Plaintiff’s strike in the three-strike log and note Plaintiff now has three
strikes.
4) In any future litigation concerning prison conditions in which Plaintiff seeks
leave to proceed in forma pauperis, Plaintiff MUST inform the Court in writing of
his three strikes status pursuant to §1915(g).

8

5) If the Plaintiff wishes to appeal this dismissal, he may file a notice of appeal
with this court within 30 days of the entry of judgment. Fed. R. App. P. 4(a). A
motion for leave to appeal in forma pauperis MUST set forth the issues the Plaintiff
plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C). If the Plaintiff does
choose to appeal, he will be liable for the $505 appellate filing fee irrespective of
the outcome of the appeal.
ENTERED this 12th day of December, 2017.

s/ James E. Shadid
____________________________________________
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE

9