Oakley v. Adrian et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge J. Phil Gilbert on 7/23/2010. (jwt)

-DGW Oakley v. Adrian et al

Doc. 9

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS JERAMIE DALE OAKLEY, Plaintiff, vs. JUSTIN ADRIAN, et al., Defendants. ) ) ) ) ) ) ) ) )

CIVIL NO. 10-cv-110-JPG

MEMORANDUM AND ORDER GILBERT, District Judge: Plaintiff, currently an inmate at the Missouri Eastern Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 and § 1985(3). This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides: (a) Screening.­ The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. (b) Grounds for Dismissal.­ On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint­ (1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be

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granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 590 U.S. 544, 570 (2007). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Although the Court is obligated to accept factual allegations as true, some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816, 821 (7th Cir. 2009). THE COMPLAINT Liberally construing the complaint and attached exhibits, Plaintiff was being pursued by various police officers from jurisdictions in the State of Missouri. Plaintiff then crossed into Illinois and the Missouri officers were joined in the pursuit by officers from the State of Illinois. The pursuit ended shortly after Plaintiff crossed into Illinois when his vehicle became disabled. Plaintiff attempted to flee on foot, but was apprehended by the pursuing law enforcement officers. Plaintiff asserts that he was tasered and, while incapacitated and unconsdious, the arresting officers used "excessive force"on him (e.g. repeatedly tasering him and striking him) causing him physical injury (e.g., a collapsed lung). Some of the named defendants are not alleged to have participated directly in the use of force against Plaintiff, but are alleged to be supervising police officers who failed to intervene in the allegedly unconstitutional actions of the arresting officers. Plaintiff also alleges that the defendants conspired to deprive him of his rights.

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DISCUSSION Claims of excessive force during an arrest are analyzed under the Fourth Amendment's "reasonableness" standard. See Graham v. Connor, 490 U.S. 386 (1989). In determining the reasonableness of the force used, a Court will consider the facts and circumstances of the case, the severity of the crime at issue, the threat posed by the suspect to the safety of the officers or others, and whether the suspect was attempting to resist or evade arrest. The objective reasonableness of the officers' response will be based upon the information the officers had at the time of the arrest. See Lawrence v. Kenosha County, 391 F.3d 837, 843 (7th Cir. 2004). Based on these standards, Plaintiff's claims of excessive force and conspiracy during his arrest cannot be dismissed at this time. DISPOSITION The Clerk is DIRECTED to prepare Form 1A (Notice of Lawsuit and Request for Waiver of Service of Summons) and Form 1B (Waiver of Service of Summons) for Defendants Adrian, Tomas, Orr, Lemonds, Kinnison, Miller, McDaniel, Lynch, and Malner.. The Clerk shall forward those forms, USM-285 forms submitted by Plaintiff, and sufficient copies of the complaint to the United States Marshal for service. The United States Marshal is DIRECTED, pursuant to Rule 4(c)(2) of the Federal Rules of Civil Procedure, to serve process on Defendants Adrian, Tomas, Orr, Lemonds, Kinnison, Miller, McDaniel, Lynch, and Malner in the manner specified by Rule 4(d)(2) of the Federal Rules of Civil Procedure. Process in this case shall consist of the complaint, applicable forms 1A and 1B, and this Memorandum and Order. For purposes of computing the passage of time under Rule 4(d)(2), the Court and all parties will compute time as of the date it is mailed by the Marshal, as

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noted on the USM-285 form. With respect to former employees of the Cape Girardeau City Police Department, the Missouri Highway Patrol and/or the Illinois State Police (hereinafter referred to as the "Employing Police Agencies") who no longer can be found at the work address provided by Plaintiff, the Employing Police Agencies shall furnish the Marshal with the Defendant's last-known address upon issuance of a court order which states that the information shall be used only for purposes of effectuating service (or for proof of service, should a dispute arise) and any documentation of the address shall be retained only by the Marshal. Address information obtained from the Employing Police Agencies pursuant to this order shall not be maintained in the court file, nor disclosed by the Marshal. The United States Marshal shall file returned waivers of service as well as any requests for waivers of service that are returned as undelivered as soon as they are received. If a waiver of service is not returned by a defendant within THIRTY (30) DAYS from the date of mailing the request for waiver, the United States Marshal shall: ! Request that the Clerk prepare a summons for that defendant who has not yet returned a waiver of service; the Clerk shall then prepare such summons as requested. Personally serve process and a copy of this Order upon the defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c). Within ten days after personal service is effected, the United States Marshal shall file the return of service for the defendant, along with evidence of any attempts to secure a waiver of service of process and of the costs subsequently incurred in effecting service on said defendant. Said costs shall be enumerated on the USM-285 form and shall include the costs incurred by the Marshal's office for photocopying additional copies of the summons and complaint and for preparing new USM-285 forms, if required. Costs of service will be taxed against the personally served defendant in accordance with the provisions of Federal Rule of Civil Procedure 4(d)(2) unless the defendant shows good cause for such failure. 4

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Plaintiff is ORDERED to serve upon defendant or, if appearance has been entered by counsel, upon that attorney, a copy of every further pleading or other document submitted for consideration by this Court. He shall include with the original paper to be filed with the Clerk of the Court a certificate stating the date that a true and correct copy of any document was mailed to defendant or his counsel. Any paper received by a district judge or magistrate judge which has not been filed with the Clerk or which fails to include a certificate of service will be disregarded by the Court. Defendants are ORDERED to timely file an appropriate responsive pleading to the complaint, and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g). Pursuant to Local Rule 72.1(a)(2), this cause is REFERRED to a United States Magistrate Judge for further pre-trial proceedings. Further, this entire matter is hereby REFERRED to a United States Magistrate Judge for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a referral. Plaintiff is under a continuing obligation to keep the Clerk and each opposing party informed of any change in his whereabouts. This shall be done in writing and not later than seven (7) days after a transfer or other change in address occurs.

If Plaintiff does not comply with this Order, this case will be dismissed for failure to comply with an order of this Court. FED.R.CIV.P. 41(b); see generally Ladien v. Astrachan, 128 F.3d 1051

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(7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994). IT IS SO ORDERED. Dated: July 23, 2010. s/ J. Phil Gilbert U. S. District Judge

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