Johnson v. Clayton et al

Filing 7

MERIT REVIEW OPINION: Plaintiff's petition to Proceed in Forma Pauperis 3 is GRANTED. Plaintiff's Motion for the Court to Appoint Counsel 5 is DENIED. Defendant Scott is directed to cause to be preserved the following video recordings: "of the plaintiff inside and outside the infirmary room #5 cell from March 30, 2017- April 7, 2017" and the video footage of "fox 2-wing in front of 12 cell while [Plaintiff's] property was being removed on March 31, 2017, at app roximately 2:30 p.m. [un]til the property was all out." (Compl. p. 16.) The Clerk is directed to send this order to the Defendant Scott with paragraph 11 highlighted. The Clerk is to enter the standard qualified protective order pursuant to th e Health Insurance Portability and Accountability Act. The Clerk is to attempt service on Defendants pursuant to the standard procedures. Rule 16 Deadline set for 6/26/2017. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 04/27/2017. (SKN, ilcd)

E-FILED

Thursday, 27 April, 2017 08:17:57 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
TERRY JOHNSON,
Plaintiff,
v.
JAMES CHRIS CLAYTON,
et al.,
Defendants.

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17-CV-4101

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 Defendant Clayton retaliated against him
for Plaintiff’s lawsuit against Defendant Clayton and others filed on
September 28, 2016, Johnson v. Clayton, 16-cv-4204 (C.D. Ill.), and
also for grievances Plaintiff has filed. The retaliation includes
terminating Plaintiff from his jobs at the facility, placing Plaintiff in
a “suicide cell” while on special management status, refusing
Plaintiff the sunglasses he needs when he has migraines, refusing
to turn off the lights when Plaintiff has migraines, removing the
dayroom television, and placing a curtain over Plaintiff’s door
window so Plaintiff could not see out. Defendants Kunkel and Scott
have allegedly condoned or approved of this retaliation. Plaintiff
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seeks to preserve video footage “of the plaintiff inside and outside
the infirmary room # 5 cell from March 30, 2017-April 7, 2017” and
the video footage of “fox 2-wing in front of 12 cell while [Plaintiff’s]
property was being removed on March 31, 2017, at approximately
2:30 p.m. [un]til the property was all out.” (Compl. p. 16.)
Plaintiff’s allegations state a plausible First Amendment
retaliation claim. Defendants Scott and Kunkel cannot be held
liable solely because they are in charge or because they believed
Defendant Clayton over Plaintiff. Burks v. Raemisch, 555 F.3d 592
(7th Cir. 2009)(“Public officials do not have a free-floating obligation
to put things to rights, . . . .”); Soderbeck v. Burnett County, 752
F.2d 285, 293 (7th Cir. 1985)(“Failure to take corrective action
cannot in and of itself violate section 1983. Otherwise the action of
an inferior officer would automatically be attributed up the line to
his highest superior . . . .”). However, that determination would be
premature.
Plaintiff also pursues a state law claim for the intentional
infliction of emotional distress. To state a claim for the intentional
infliction of emotional distress, Plaintiff's alleged facts must allow a
plausible inference that: 1) Defendants engaged in "truly extreme
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and outrageous conduct"; 2) Defendants intended to cause extreme
emotional distress or knew extreme emotional distress was highly
probable; and, 3) Plaintiff actually suffered severe emotional
distress. Feltmeier v. Feltmeier, 207 Ill.2d 263, 268-69 (2003). The
conduct must be extreme and outrageous, intended to inflict
emotional distress and in fact inflicting emotional distress so severe
that “‘no reasonable man could be expected to endure it.’” McGreal
v. Orland Park, 850 F.3d 308, 315 (7th Cir. 2017)(quoted cite
omitted). Plaintiff’s claims arise from actions taken by Clayton
within the scope of his employment, actions which form a routine
part of Clayton’s job if performed for legitimate reasons. On these
allegations, Plaintiff states no claim for the intentional infliction of
emotional distress.
IT IS ORDERED:
1.

Plaintiff's petition to proceed in forma pauperis is granted

(3). Pursuant to a review of the Complaint, the Court finds that
Plaintiff states a First Amendment claim for retaliation against him
for Plaintiff’s lawsuit and grievances. 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
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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. Plaintiff is

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
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
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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
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, 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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7.

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.
8.

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.
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
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. Plaintiff’s motion for the Court to appoint counsel is
denied (5), with leave to renew after Plaintiff demonstrates that he
has made reasonable efforts to find counsel on his own. Pruitt v.
Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). This typically requires
writing to several lawyers and attaching the responses. Plaintiff
attaches letters, but they are all dated before the incidents giving
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rise to his claims in this case. Plaintiff must attempt to obtain
counsel for each new case he files.
11. Defendant Scott is directed to cause to be preserved the
following video recordings:

“of the plaintiff inside and outside

the infirmary room # 5 cell from March 30, 2017-April 7, 2017”
and the video footage of “fox 2-wing in front of 12 cell while
[Plaintiff’s] property was being removed on March 31, 2017, at
approximately 2:30 p.m. [un]til the property was all out.”
(Compl. p. 16.)
12. The clerk is directed to send this order to the Defendant
Scott with paragraph11 highlighted.
13. The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
14. The Clerk is directed to attempt service on Defendants
pursuant to the standard procedures.
ENTERED: April 27, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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