Beckel et al v. Scott et al

Filing 13

MERIT REVIEW ORDER entered by Judge Joe Billy McDade on 2/5/2018. IT IS THEREFORE ORDERED: 1. Plaintiff's petition to proceed in forma pauperis 10 is GRANTED. His prior motions at 3 and 7 are rendered MOOT. The Court finds that Plaintiff h as stated an Eighth Amendment claim that Defendant Orrill conducted the pat down search in a harassing manner, without penological justification. 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. All Defendants, save Orrill, are DISMISSED. 2. Plaintiff's motion for status 11 is rendered MOOT. Plaintiff's motion for default judgment 12 , is DENIED as Defendants have not yet been served and are not in default. 3. The Clerk is directed to send to each Defendant pursuant to this District's internal procedures: 1) a Notice of Lawsuit and Request for Waiver of Service; 2) a Waiver of Service; 3) a copy of the Complaint; and 4) a copy of this Order. SEE FULL WRITTEN ORDER.(SAG, ilcd)

E-FILED

Monday, 05 February, 2018 04:41:35 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
ANDREW W. BECKEL,

)
)
)
)
)
)
)
)

Plaintiff,
v.
S. ORRILL,
Defendant.

No.: 17-4247-JBM

MERIT REVIEW ORDER
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). 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 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).

1 

ALLEGATIONS
Plaintiff is civilly detained in the Rushville Treatment and Detention Center pursuant to
the Illinois Sexually Violent Persons Commitment Act, 725 ILCS 207/1, et seq. The complaint
was originally filed by co-plaintiffs Beckel and Barnard. Plaintiff Barnard was dismissed for
failing to pay the filing fee or to file a petition to proceed in forma pauperis. [See October 25,
2017 Text Order]. The Court, therefore, reviews the complaint only on behalf of Plaintiff
Beckel.
Plaintiff has identified 46 named defendants as well as an unquantified number of
John/Jane Does. The substantive part of the complaint, however, is only 1 ½ pages long and
gives little detail as to the claims against the majority of the Defendants. Plaintiff alleges that on
August 3, 2017, Defendant Orrill made crude remarks about Plaintiff’s sexual relationship with
Barnard, and intentionally fondled his penis during a pat down. He alleges that on August 13,
2017, Defendants Dikmens and Peepers confiscated letters between Plaintiff and Barnard.
Otherwise, Plaintiff claims only that the numerous defendants are “responsible” for supervising
others or “responsible” for attending to the residents’ living needs and that “[t]he Defendants as
a whole pick and choose which residents they wish to punish.”
Plaintiff will be allowed to go forward on his claims that Defendant Orrill intentionally
fondled his penis during a pat down. While prison officials are permitted to touch, pat down and
search a prisoner in order to determine whether the prisoner is hiding anything dangerous in his
person, or for other penological reasons, they may not do so “in a harassing manner intended to
humiliate and inflict psychological pain.” Turner v. Huibregtse, 421 F.Supp. 2d 1149, 1151
(W.D. Wis March 22, 2006). His claim that Defendant Orrill made disparaging remarks will not,
as verbal abuse and harassment are considered de minimus and not to rise to the level of a

2 

constitutional violation. Ingraham v. Wright, 430 U.S. 651, 674 (1977). See also, DeWalt v.
Carter, 224 F.3d 607, 612 (7th Cir. 2000)(verbal abuse does not constitute cruel and unusual
punishment).
Plaintiff’s allegations that Defendants Dikmens and Peepers confiscated letters on
August 13, 2017, is not related to the August 3, 2017 claim against Defendant Orville and
represent a misjoinder. See Davis v. Harding, 12-cv-559, 2013 WL 6441027, at *2 (W.D. Wis.
Dec. 9, 2013) (a plaintiff may join several defendants in one suit only if the claims arose out of a
single transaction and contain a question of fact or law common to all the defendants.); see also,
Fed.R.Civ.P. 20(a). The claims against Defendants Dikmens and Peepers are dismissed without
prejudice. If Plaintiff intends to proceed on this claim, he must file it as a separate lawsuit, with
its own attendant filing fee.
Plaintiff makes no specific allegations against the remaining Defendants and they are
DISMISSED. Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003)(individual liability
under Section 1983 can only be based upon a finding that the defendant caused the deprivation
alleged). “To be liable under [Section] 1983, an individual defendant must have caused or
participated in a constitutional deprivation.” Pepper v. Village of Oak Park, 430 F.3d 809, 810
(7th Cir. 2005). Merely naming a defendant in the caption is insufficient to state a claim. See
Collins v. Kibort, 143 F.3d 331, 334 (7th Cir.1998).
IT IS THEREFORE ORDERED:
1.

Plaintiff's petition to proceed in forma pauperis [10] is GRANTED. His prior

motions at [3] and [7] are rendered MOOT. The Court finds that Plaintiff has stated an Eighth
Amendment claim that Defendant Orrill conducted the pat down search in a harassing manner,
without penological justification. Any additional claims shall not be included in the case, except

3 

at the Court’s discretion on motion by a party for good cause shown or pursuant to Federal Rule
of Civil Procedure 15. All Defendants, save Orrill, are DISMISSED.
2.

Plaintiff’s motion for status [11] is rendered MOOT. Plaintiff’s motion for

default judgment [12], is DENIED as Defendants have not yet been served and are not in default.
3.

The Clerk is directed to send to each Defendant pursuant to this District's internal

procedures: 1) a Notice of Lawsuit and Request for Waiver of Service; 2) a Waiver of Service; 3)
a copy of the Complaint; and 4) a copy of this Order.
4.

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 on that
Defendant and will require that Defendant pay the full costs of formal service pursuant to
Federal Rule of Civil Procedure 4(d)(2). If a Defendant no longer works at the address provided
by Plaintiff, the entity for which Defendant worked at the time identified in the Complaint shall
provide to the Clerk Defendant's current work address, or, if not known, Defendant's forwarding
address. This information will be used only for purposes of effecting service. Documentation of
forwarding addresses will be maintained 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 the time prescribed by Local Rule. A

Motion to Dismiss is not an answer. The answer it to include all defenses appropriate under the
Federal Rules. The answer and subsequent pleadings are to address the issues and claims
identified in this Order.
6.

Plaintiff shall serve upon any Defendant who has been served, but who is not

represented by counsel, a copy of every filing submitted by Plaintiff for consideration by the
Court, and shall also file a certificate of service stating the date on which the copy was mailed.

4 

Any paper received by a District Judge or Magistrate Judge that has not been filed with the Clerk
or that fails to include a required certificate of service will be stricken by the Court.
7.

Once counsel has appeared for a Defendant, Plaintiff need not send copies of

filings to that Defendant or to that Defendant's counsel. Instead the Clerk will file Plaintiff's
document electronically and send notice of electronic filing to defense counsel. The notice of
electronic filing shall constitute notice to Defendant pursuant to Local Rule 5.3. If electronic
service on Defendants is not available, Plaintiff will be notified and instructed accordingly.
8.

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 depositions.
9.

Plaintiff shall immediately notice the Court of any change in mailing address or

phone number. The Clerk is directed to set an internal court deadline 60 days from the entry of
this Order for the Court to check on the status of service and enter scheduling deadlines.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) ATTEMPT SERVICE ON DEFENDANTS PURSUANT TO THE STANDARD
PROCEDURES AND
2) SET AN INTERNAL COURT DEADLINE 60 DAYS FROM THE ENTRY OF
THIS ORDER FOR THE COURT TO CHECK ON THE STATUS OF SERVICE AND
ENTER SCHEDULING DEADLINES.
LASTLY, IT IS ORDERED THAT 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
5 

OF FORMAL SERVICE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE
4(d)(2).

_2/5/2018
ENTERED

s/Joe Billy McDade_______
JOE BILLY McDADE
UNITED STATES DISTRICT JUDGE

6