Smith et al v. Lodge et al

Filing 11

MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 6/16/2017. See written Order. Plaintiffs' motions for leave to appeal in forma pauperis 5 , 6 are DENIED. The plaintiffs' complaint is dismissed for failure to state a claim purs uant to Fed. R. Civ. Proc. 12(b)(6) and 28 U.S.C. Section 1915A. This case is closed. 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. (LN, ilcd)

E-FILED

Friday, 16 June, 2017 03:17:07 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
MICHAEL W. SMITH and JOSHUA D. )
WARNER,
)
)
Plaintiffs,
)
)
v.
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)
PAULA D. LODGE, et al.,
)
)
Defendants.
)

17-CV-4094

MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiffs, proceeding pro se, are civil detainees at the Rushville Treatment
and Detention Facility (“Rushville”), and are 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 plaintiffs filed this lawsuit jointly alleging they are married and that the
Rushville officials will not allow them to attend the same recreational groups. Plaintiffs
allege that the defendants’ actions are in retaliation for a previously filed lawsuit.
Plaintiffs have sued the members of their respective treatment teams.
Those lawfully detained do not retain rights inconsistent with such confinement.
See Overton v. Bazzetta, 539 U.S. 126, 131 (2003) (citing Jones v. North Carolina Prisoners’

Labor Union, Inc., 433 U.S. 119, 125 (1977). Among those rights retained, freedom of
association is one of the least compatible with their present situation. Id. In addition,
Plaintiffs have no due process right to unfettered contact with each other despite the
fact that they share a familial relationship. See Kentucky Dep’t of Corrs. v. Thompson, 490
U.S. 454, 460 (1989) (no due process right to unfettered visitation); Block v. Rutherford,
468 U.S. 576, 585-88 (1984) (pretrial detainees have no constitutional due process right to
contact visits). Insofar as Plaintiffs allege retaliation for a previously filed lawsuit filed
against different TDF officials, they have not alleged that the defendants in this case
knew about the lawsuit before taking the alleged adverse action. Therefore, the Court
finds that Plaintiffs fail to state a constitutional claim.
IT IS THEREFORE ORDERED:
1. Plaintiffs’ motions for leave to appeal in forma pauperis [5, 6] are DENIED.
2. The plaintiffs’ complaint is dismissed for failure to state a claim pursuant to
Fed. R. Civ. Proc. 12(b)(6) and 28 U.S.C. Section 1915A. This case is closed.
3. 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 16th day of June, 2017
/s/ Harold A. Baker
_________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE