Carpenter v. Scott
OPINION entered by Chief Judge James E. Shadid on 3/8/2018. IT IS ORDERED: Plaintiff's petition to proceed in forma pauperis is granted. 3 . Pursuant to a review of the Complaint, the Court finds that Plaintiff alleges Defendant Scott violated his First Amendment right based on a rule or policy banning Rushville residents from possessing sexually explicit photographs or pornographic magazines. 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 motion by a party for good cause shown or pursuant to Federal Rule of Civil Procedure 15. SEE FULL WRITTEN OPINION.(SAG, ilcd)
Thursday, 08 March, 2018 02:29:52 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
JERMAINE D. CARPENTER,
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. § 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 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. He is suing the Facility Director, Gregg Scott, based on an alleged unconstitutional
Plaintiff says he believes he should be “allowed to have sexually explicit photos
and consensual sex porno magazines.” (Comp., p 5). However when Plaintiff has
requested these items, he was informed it was against facility rules since sexually
explicit materials are considered contraband. Plaintiff was referred to the Resident
Handbook. Plaintiff maintains the restriction is unwarranted and unconstitutional. He
asks for nominal damage and for the rule or policy to be eliminated.
The Seventh Circuit has held the Turner test is the appropriate standard for
considering a civil detainee’s First Amendment claim. Brown v. Phillips, 801 F.3d 849,
853–54 (7th Cir. 2015). In other words, a regulation which restricts an inmate or
detainee’s constitutional rights is valid if it is reasonably related to legitimate
penological interests. Turner v. Safley, 482 U.S. 78, 89 (1987). However, the Appellate
Court also recognized “[p]ersons who have been involuntarily committed are entitled to
more considerate treatment and conditions of confinement than criminals whose
conditions of confinement are designed to punish.” Brown, 801 F.2d at 854 quoting
Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982).
In Brown v. Phillips, the Seventh Circuit overturned the district court’s summary
judgment in favor of Rushville Defendants who banned detainees from having certain
movies and video games. Brown, 801 F.3d 849. The Court found the Defendants’
argument in support of ban was “too feeble.” Brown, 801 F.3d at 854. Specifically, the
Seventh Circuit rejected Defendants argument that “common sense” justified
“prohibiting sex offenders from viewing sexually explicit materials.” Brown, 801 F.3d at
854. Instead, the Court held “some data is needed to connect the goal of reducing the
recidivism of sex offenders with a ban on their possessing legal adult pornography.”
Brown, 801 F.3d at 854; see also United States v. Taylor, 796 F.3d 788, 792–93 (7th Cir.2015)
(overturning a condition of supervised release that prohibited a person convicted of
trafficking child pornography from possessing legal adult pornography; no evidence
suggested that the legal material contributed to the illegal activity); United States v.
Siegel, 753 F.3d 705, 709 (7th Cir.2014) (observing that allowing a rapist of adult women
access to legal pornography can decrease likelihood of recidivism because research
shows that viewing legal pornography can be a safe outlet for sexual behavior).
The Court notes Federal Rule of Civil Procedure 8 requires only “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Coupled with the liberal reading required of pro se complaints, the standard for
surviving the Court’s initial review is not high. Consequently, Plaintiff has adequately
alleged a First Amendment violation based on a rule or policy banning Rushville
residents from possessing sexually explicit photographs or pornographic magazines.
Once Defendants have been served and have filed an answer to the complaint,
this matter will be set for hearing pursuant to Rule 16 of the Federal Rules of Civil
Procedure for the setting of expedited discovery and dispositive motion deadlines.
IT IS THEREFORE ORDERED:
Plaintiff's petition to proceed in forma pauperis is granted. . Pursuant to
a review of the Complaint, the Court finds that Plaintiff alleges Defendant Scott violated
his First Amendment right based on a rule or policy banning Rushville residents from
possessing sexually explicit photographs or pornographic magazines. 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 motion by a party for
good cause shown or pursuant to Federal Rule of Civil Procedure 15.
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.
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.
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 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.
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.
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.
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
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
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
The Clerk is directed to attempt service on Defendants pursuant to the
ENTERED this 8th day of March, 2018.
s/ James E. Shadid
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE
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