Adams v. Harrington et al
ORDER DISMISSING CASE : IT IS HEREBY ORDERED that Counts 1, 2 and 4 are dismissed with prejudice as factually frivolous. Counts 3 and 5 are dismissed for failure to state a claim upon which relief can be granted. Counts 6 and 7 are dismissed with prejudice as legally frivolous. Additionally, all counts are barred by the statute of limitations. The Court will accordingly dismiss the case with prejudice. Signed by Judge David R. Herndon on 9/13/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Case No. 17−cv–0715−DRH
JERRY L WHITTHOFT,
ORANGE CRUSH (MENARD) and
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Maurecus Adams, an inmate in Lawrence Correctional Center,
brings this action for deprivations of his constitutional rights pursuant to 42
U.S.C. § 1983 that allegedly occurred at Menard Correctional Center.
requests declarative relief, a pardon,1 compensatory damages, punitive damages,
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.
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). Frivolousness is an
objective standard that refers to a claim that any reasonable person would find
meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An action
fails to state a claim upon which relief can be 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, 550 U.S. 544, 570 (2007).
The claim of entitlement to relief must
cross “the line between possibility and plausibility.” Id. at 557. At this juncture,
the factual allegations of the pro se complaint are to be liberally construed. See
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
This relief is not available under § 1983.
Upon careful review of the Complaint and any supporting exhibits, the
Court finds it appropriate to exercise its authority under § 1915A; this action is
subject to summary dismissal.
Plaintiff brought suit on July 7, 2017.
The suit originally
included allegations arising out of Plaintiff’s time at Menard, Stateville, and
Lawrence Correctional Centers, but on August 25, 2017 the Court severed the
claims arising out of conduct at Stateville and Lawrence pursuant to George v.
Smith, 507 F.3d 605 (7th Cir. 2007).
This case proceeds as to
Plaintiff’s claims arising out of his time at Menard Correctional Center alone.
On February 5, 2014, while at Menard, C/O Petterson agreed to whip
Plaintiff at the request of other inmates who believed Plaintiff was a snitch.2 (Doc.
1, p. 7). That same day, Wills gave orders to kill Plaintiff because he said Plaintiff
talked too much. Id. Nurse Stefun agreed to use Drug S6K and HIV in order to
kill Plaintiff; Stefun had allegedly discovered that Drug S6K, when combined with
HIV, will cause an allergic reaction resulting in death.
(Doc. 1, p. 8).
Rayburs also agreed to issue a report on Plaintiff’s death. Id. Nurse Hopkins
agreed to report Plaintiff’s murder as a suicide. Id. Plaintiff also believes that
“rape was also a weapon to maybe be used to give me HIV,” although the
Complaint never states he was actually raped. (Doc. 1, pp. 7-8). Lt. Hughes then
The Complaint never alleges that Petterson actually “whipped” Plaintiff.
came and took Plaintiff to segregation in violation of his 8th Amendment Rights.
(Doc. 1, pp. 8-9).
Records attached to the Complaint indicate that Plaintiff engaged in selfharming behavior on February 5, 2014, and was placed on crisis watch. (Doc. 11, pp. 14-16).
Dr. Suneja came to Plaintiff’s cell on February 10, 2014 to check on the
effects of the drug. (Doc. 1, p. 8). Plaintiff complained to him, but nothing was
done. Id. Plaintiff also complained to Suneja on February 18, 2014, March 23,
2014 and July 28, 2014. Id. Plaintiff alleges that Nurse Jane Doe then came to
his cell and poked him twice with a small syringe through the bars. (Doc. 1, p. 9).
Zang was the gallery officer at this time. Id. The porter also gave Plaintiff a juice
box containing urine. Id. Lt. Bradley, Spiller, Whitthoft, and Heckinger observed
the effect of the drug on Plaintiff and forced him out of his cell using the extraction
team to see the nurse. (Doc. 1, pp. 9-10). The Menard Orange Crush team maced
and extracted Plaintiff from his cell; Plaintiff alleges he refused the order to cuff
up out of fear. (Doc. 1, p. 10). The Menard Orange Crush team also took the
juice container full of urine. Id. Plaintiff was given another juice container by
Wilson that contained an electronic transmitter. Id. Plaintiff felt the transmitter
get caught between his throat and his chest. Id. Plaintiff spoke to several officers
about the transmitter but they failed to document it. Id. Richard Harrington was
the Warden of Menard during both the February 5th and 10th incidents. (Doc. 1,
On May 28, 2014, Odisa transported Plaintiff from a squad car, which he
had been in due to a court writ, to segregation. (Doc. 1, p. 10). Odisa verbally
threatened Plaintiff, telling him that he should only ask for help if he didn’t
remember what happened the last time. (Doc. 1, pp. 10-11).
On April 8, 2015, Lee “called [Plaintiff] out” regarding the grievance he
wrote on March 6, 2015 regarding being poisoned.
(Doc. 1, p. 11).
alleges this violated his 5th, 8th, and 14th Amendment rights. Id.
Plaintiff wrote a letter and a grievance that Butler failed to respond to
between June 25, 2014 and March 6, 2015. Id. Plaintiff left Menard on May 21,
2015. (Doc. 1-1, p. 8).
The Order severing this case found that 7 of Plaintiff’s claims arose out of
his time at Menard and would proceed in this lawsuit:
Count 1 – Petterson, Wills, Stefun, Rayburs, Hopkins, Hughes, and
Nurse Jane Doe engaged in a plot to poison Plaintiff with Drug S6K
and HIV on February 5, 2014 in violation of the Fifth, Eighth, and
Count 2 – Suneja, Zang, Bradley, Spiller, Whitthoft, Heckinger, and
Harrington were deliberately indifferent to Plaintiff’s infection with
Drug S6K and HIV in violation of the Eighth Amendment;
Count 3 – Orange Crush (Menard) performed an unconstitutional
cell extraction on February 10, 2014 while Bradley, Spiller,
Whitthoft, and Heckinger watched in violation of the Fifth, Eighth,
and Fourteenth Amendments;
Count 4 – Wilson gave Plaintiff a juice container with an electronic
transmitter on February 10, 2014, which Plaintiff ingested, in
violation of Plaintiff’s Fifth, Eighth, and Fourteenth Amendment
Count 5 – On May 28, 2014, Odisa transported Plaintiff from a court
writ and orally threatened him in violation of his Fifth, Eighth, and
Fourteenth Amendment rights;
Count 6 – Lee asked Plaintiff about a grievance Plaintiff filed to
Springfield in violation of Plaintiff’s Fifth, Eighth, and Fourteenth
Amendment rights on April 8, 2015;
Count 7 – Butler failed to respond to Plaintiff’s June 25, 2014
grievance and subsequent March 6, 2015 grievance in violation of his
Fifth, Eighth, and Fourteenth Amendment rights;
All of Plaintiff’s claims are subject to dismissal at this time. Counts 1 and
2 allege that Plaintiff was poisoned with a combination of HIV and another drug,
S6K. It is not clear exactly what method was used to allegedly poison Plaintiff—he
mentions a juice box full of urine, mysterious injections, and “maybe” rape. In
Count 4, Plaintiff alleges that he was made to ingest a human electronic
transmitter, possibly through another contaminated juice box, and that the
transmitter allows the prison to monitor and control his thoughts.
These allegations are factually frivolous and will be dismissed with
Allegations are factually frivolous where they are “clearly baseless,
fanciful, fantastic, delusional, irrational, or wholly incredible.” Felton, 827 F.3d
at 635; Gladney v. Pendleton Correctional Facility, 302 F.3d 773, 774-75 (7th
Cir. 2002)(“[N]o evidentiary hearing is required in a prisoner’s case when the
factual allegations are incredible. . .
jurisdiction of the district court.”).
A frivolous suit does not engage the
The Seventh Circuit upheld a factually
frivolous determination in Gladney where the prisoner alleged that guards at 3
different prisons unlocked the door of his cell at night, allowing other prisoners to
drug and rape him, a circumstance that only came to the plaintiff’s attention when
he found a lone needle mark under his lip. Gladney, 302 F.3d at 774.
This case is similar to Gladney. Plaintiff’s allegations regarding his alleged
poisoning and “chipping” are frankly incredible, and they rest only on his own
subjective belief in their truth. Plaintiff has submitted an exhibit from 2015 in
which he concedes that he has tested negative for HIV. (Doc. 1-1, p. 1). Likewise,
he submitted a report on a chest x-ray stating that there are no foreign objects in
his chest. (Doc. 1-1, p. 187).
Plaintiff has also been diagnosed by multiple
mental health professionals as having delusional disorder. (Doc. 1-1, p. 46-61,
Plaintiff rejects this diagnosis and claims that the mental health
professionals have not done their research. He also claims that the doctor who
took the x-ray is either wrong or trying to cover for the Menard officials. Plaintiff
has not provided any plausible facts for either of these propositions. The basis
for his claims appears to be his own unshakeable faith in his delusions. Plaintiff
may believe what he likes, but the Court cannot permit claims based on delusions
Counts 1, 2, and 4 will be dismissed with prejudice as factually
Plaintiff also alleges that the Orange Crush Tactical Team performed an
unconstitutional cell extraction in Count 3, and that other prison officials
watched but refused to intervene. The intentional use of excessive force by prison
guards against an inmate without penological justification constitutes cruel and
unusual punishment in violation of the Eighth Amendment and is actionable
under § 1983. See Wilkins v. Gaddy, 559 U.S. 34 (2010); DeWalt v. Carter, 224
F.3d 607, 619 (7th Cir. 2000). An inmate must show that an assault occurred,
and that “it was carried out ‘maliciously and sadistically’ rather than as part of ‘a
good-faith effort to maintain or restore discipline.’” Wilkins, 559 U.S. at 40 (citing
Hudson v. McMillian, 503 U.S. 1, 6 (1992)).
The factors relevant to this
determination include: (1) the need for the application of force; (2) the amount of
force that was used; (3) the extent of injury inflicted; (4) the extent of the threat to
the safety of staff and inmates, as reasonably perceived by the responsible officials
on the basis of the facts known to them; and (5) any efforts made to temper the
severity of a forceful response. Lewis v. Downey, 581 F.3d 467, 477 (7th Cir.
2009); Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001) (citation omitted).
An inmate seeking damages for the use of excessive force need not establish
serious bodily injury to make a claim, but not “every malevolent touch by a prison
guard gives rise to a federal cause of action.” Wilkins, 559 U.S. at 37-38 (the
question is whether force was de minimis, not whether the injury suffered was de
minimis); see also Outlaw v. Newkirk, 259 F.3d 833, 837-38 (7th Cir. 2001).
Plaintiff has alleged that he was extracted from his cell and maced. But he
has also conceded that he refused to come out of his cell when ordered, which
makes it plausible that force was used to legitimately restore discipline. More
problematically, Plaintiff has not alleged that he actually suffered any harm or
injury as a result of the cell extraction.
This makes Plaintiff’s claim that the
guards used excessive force implausible because Plaintiff has already conceded
that he was not following orders at the time of the incident and has not provided
any allegations that suggest that the force used was excessive. The lack of harm
strongly implies that it was not excessive. Without such allegations, Plaintiff has
failed to state claim that would entitle him to relief. Count 3 will therefore be
In Count 5, Plaintiff alleges that Odisa verbally threatened him during a
While distasteful, allegations of verbal harassment typically
state no claim under the Eighth Amendment. Dobbey v. Ill. Dep't of Corrections,
574 F.3d 443, 446 (7th Cir. 2009). See also DeWalt v. Carter, 224 F.3d 607,
612 (7th Cir. 2000) (“Standing alone, simple verbal harassment does not
constitute cruel and unusual punishment, deprive a prisoner of a protected liberty
interest or deny a prisoner equal protection of the laws”); Beal v. Foster, 803
F.3d 356, 358 (7th Cir. 2015) (reaffirming that limited verbal harassment states
no claim, but qualifying that in certain circumstances, verbal harassment may rise
to the level of cruel and unusual punishment). Here, Plaintiff has not provided
any further allegations that would make it plausible that Odisa’s harassment rose
to the level of cruel and unusual punishment. Plaintiff has only alleged that Odisa
made a lone comment to him, and a fairly vague comment at that. There are no
allegations of a pattern or campaign of harassment, or the kind of verbal
harassment plus physical harassment that the Seventh Circuit found problematic
in Beal. Plaintiff has failed to state a claim in Count 5.
Plaintiff next alleges that Lee violated his Fifth, Eighth, and Fourteenth
Amendment rights when Lee asked him about a grievance he had filed.
Conducting an investigation into the merits of a grievance has never been found to
violate a prisoner’s constitutional rights. Moreover, prisoners have an extremely
limited right to refuse to cooperate with internal prison investigations. The only
limitation on prison investigation is that prisoners may not be compelled to selfincriminate without immunity. Caffey v. Maue, 679 F. App’x 487 490 (7th Cir.
2017); Riggins v. Walter, 279 F.3d 422, 430 (7th Cir. 1995). But here, Plaintiff
has not alleged that Lee’s questions would have forced him to incriminate himself.
Plaintiff has also not alleged that he was physically harmed during Lee’s
questioning or deprived of any liberty interest by the investigation. To the extent
that Plaintiff’s real issue is that Lee did not come to his preferred conclusion,
Plaintiff has no legal interest in any particular outcome of an investigation. On
these facts, Plaintiff has not stated a claim in Count 6.
Finally, Plaintiff alleges that Butler failed to respond to his grievances in
Count 7. While sometimes involvement in the grievance process may establish
that a defendant was personally involved in the constitutional violation at issue,
Perez v. Fenoglio, 792 F.3d 768, 781-82 (7th Cir. 2015), the Court has found
that Plaintiff’s other claims fail to allege constitutional violations, and so the
question of whether Butler was involved in those claims is moot. Even if it was
not, Butler did not become Warden of Menard until April 2014, further suggesting
that there are no grounds to assume she was personally involved in the allegations
in Counts 1-4, which all occurred prior to that time. Butler’s failure to respond
to grievances in this instance does not appear to establish that she was personally
involved in any of the alleged constitutional violations.
If Count 7 is a claim purely for the failure to respond to grievances, it must
be dismissed because there is no constitutional right in the grievance process
itself. Prison grievance procedures are not constitutionally mandated and thus do
not implicate the Due Process Clause per se.
The alleged mishandling of
grievances “by persons who otherwise did not cause or participate in the
underlying conduct states no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th
Cir. 2011). See also Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th Cir.
2008); George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); Antonelli v.
Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). Count 7 will be dismissed with
prejudice as legally frivolous because Plaintiff has no constitutional legal interest
in receiving a response to his grievances.
In the alternative, the Court finds that all of the claims in this lawsuit are
barred by the statute of limitations. Although typically, affirmative defenses such
filing after the statute of limitations are litigated by the parties after service, see
Jones v. Bock, 549 U.S. 199, 212 (2007), a Court may invoke these defenses on §
1915A review when the availability of the defense is apparent on the face of the
Complaint. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002); Gleash
v. Yuswak, 308 F.3d 758, 760 (7th Cir. 2002); Brownlee v. Conine, 957 F.2d
353, 354 (7th Cir. 1992).
Section 1983 does not contain its own statute of limitations, and so § 1983
claims are governed by the law of the state where the alleged violation occurred.
Johnson v. Rivera, 272 F.3d 519, 521 (7th Cir. 2001)(citing Wilson v. Garcia,
471 U.S. 261. 276 (1985)).
In this District, § 1983 claims are governed by
Illinois’ 2-year statute of limitations. Dominguez v. Hendley, 545 F.3d 585, 588
(7th Cir. 2008). The Court is also bound to apply a state’s tolling rules, and in
Illinois, the operation of 735 ILCS 5/13-216 has the effect of tolling the limitation
period while a prisoner completes the administrative grievance process. Gomez
v. Randle, 680 F.3d 859, 864 (7th Cir. 2012); Walker v. Sheahan, 526 F.3d 973,
978 (7th Cir. 2008); Johnson, 272 F.3d at 521. The statute is only tolled while
the prisoner exhausts his administrative remedies; it is not tolled during the time
period between the injury and the start of the administrative remedy process.
Santiago v. Snyder, 211 F. App’x 478, 480 (7th Cir. 2006) (rejecting plaintiff’s
argument that he was entitled to 8 more months of tolling to account for the time
between his injury and his grievance when he was allegedly pursuing informal
Inmates confined in the IDOC must adhere to the Department’s Grievance
Procedures for Offenders in order to properly exhaust claims; anything less is a
failure to exhaust. 20 Ill. Adm. Code § 504.810. Prisoners must first speak with
their counselor about the issues they raise, and if the dispute is not resolved, a
formal grievance must be filed within 60 days of the events or occurrence with the
grievance officer. 20 Ill. Adm. Code § 504.810(a). The grievance officer must then
review the grievance and report findings and recommendations to the Chief
Administrative Officer (“CAO”). 20 Ill. Adm. Code § 504.830(d). The prisoner
then has the opportunity to review the CAO’s response, and if unsatisfied, may
appeal to the Director through the ARB within 30 days of the Warden’s response.
20 Ill. Adm. Code § 504.830(d); 20 Ill. Adm. Code § 504.850. The ARB is then
required to provide a written report to the Director of its recommendation on the
grievance and the Director “shall review the findings and recommendations of the
Board and make a final determination of the grievance within 6 months after
receipt of the appealed grievance, where reasonably feasible under the
circumstances.” 20 Ill. Admin. Code § 504.850(e), (f).
Plaintiff alleges that the events at issue occurred on February 5, 2014,
February 10, 2014, May 28, 2014, and April 8, 2015.
In the section that
discusses his exhaustion of legal remedies, Plaintiff points to an October 4, 2016
grievance that he filed at Lawrence Correctional Center, but that grievance is not
relevant to the events at Menard. It is attached to the Complaint and a review
shows that it relates only to Plaintiff’s medical and mental health care at Lawrence
Plaintiff does not explicitly state that any other grievance exhausted his
remedies as to this case, but the Complaint alludes to a several grievances that
may be relevant to the Menard events. Plaintiff alleges that he filed a grievance
either on March 6, 2014 or March 6, 2015. The Court presumes that the March
6, 2014 date is a typo; Plaintiff states that he filed the March 6th grievance in
2014 in paragraph 57 on page 11 of Doc. 1, but in paragraph 59 he says it was
filed in 2015, and also blames Butler,3 not Harrington, for refusing to respond it.
In multiple other places, Plaintiff also describes the grievance as being filed in
2015. (Doc. 1-1, p. 1)4(Doc. 1-1, p. 8) (Doc. 1-1, p. 9) (Doc. 1-1, p. 10) (Doc. 1-1,
p. 12) (Doc. 1-1, p. 13). Plaintiff alleges he filed another grievance on June 25,
2014, and that he never got responses to either grievance.5
However, just because an inmate does not get a response to a grievance
does not mean that he is entitled to indefinite tolling. An inmate may file suit
when the grievance process becomes unavailable. Lewis v. Washington, 300 F.3d
829, 833 (7th Cir. 2002).
A transfer between institutions may render the
grievance procedure unavailable if the change effectively ends the grievance
process. Flournoy v. Schomig, 152 F. App’x 535, 538 (7th Cir. 2005); Westefer
v. Snyder, 422 F.3d 570, 578 (7th Cir. 2005).
Plaintiff’s Count 1 occurred on February 5, 2014. Plaintiff did not file a
grievance until June 25, 2014, 144 days later. The statute of limitations ran for
144 days as to that claim. Plaintiff alleges that he never got a response to that
grievance and filed a subsequent grievance on March 6, 2015.
But then he
transferred out of Menard on May 21, 2015. Plaintiff should have considered his
Butler became Warden of Menard in April 2014.
Plaintiff essentially repeats the allegations of Paragraph 57 in this instance: that he submitted a
March 6th grievance and Tracy Lee investigated it the following month, which further suggests that
Paragraph 57 has the typo.
It is highly unlikely that either the June 25, 2014 grievance or the March 6, 2015 grievance were
sufficient to exhaust Plaintiff’s remedies as the Complaint suggests that both grievances were filed
more than 60 days after some of the relevant events and that the proper procedures were not
followed, although the Court does not decide that issue here.
remedies exhausted as of that date; he had allegedly not received a response from
either grievance despite the passage of a significant amount of time, and he has
not alleged that the grievance process was at a stage where it could have
continued without a response from Menard staff. Plaintiff should have brought
suit within 586 days of his transfer or on or before December 27, 2016. Instead
he waited more than 2 years from the date of his transfer and filed it on July 7,
2017. Plaintiff’s suit as to Count 1 is untimely.
The same analysis applies to Counts 3-4, which occurred a mere 5 days
after the events in in Count 1.
The statute of limitations ran for 139 days
between February 10, 2014 and June 25, 2014.
It was then tolled due to
Plaintiff’s grievance activity until Plaintiff’s transfer made his remaining remedies
unavailable. Plaintiff should have brought suit within 591 days of his transfer or
on or before January 1, 2017. Instead he waited 7 months until July 7, 2017.
Plaintiff’s suit as to Counts 3-4 is likewise untimely.
Count 5 is also untimely. That claim accrued on May 28, 2014. Assuming
it was included in the June 25, 2014 grievance, the statute of limitations ran for
28 days. Plaintiff’s grievance activity then tolled the statute until May 21, 2015,
when he was transferred to Lawrence. Plaintiff therefore had 702 days to file suit
as to Count 5 before the statute of limitations ran, or on or before April 22, 2017.
He filed suit more than 2 and a half months later on July 7, 2017, making his
claims in Count 5 too late.
Plaintiff does not appear to be entitled to any tolling as to Count 6; the
claim accrued on April 8, 2015—after both grievances that Plaintiff allegedly filed
as to the Menard conduct had been submitted. Plaintiff does not allege that he
ever filed a grievance specifically on the events in Count 6. In that event, Plaintiff
should have filed his lawsuit no more than 2 years after the alleged incident or on
or before April 8, 2017. Instead he waited until July 7, 2017, nearly 3 months
later. Plaintiff’s claims in Count 6 are untimely.
As to Counts 2 and 7, it is more difficult to tell when precisely those claims
Counts 2 and 7 allege ongoing courses of conduct.
under a continuing violation theory of liability accrue on the last day that officials
decline to act to avert the constitutional violation, or on the date the inmate left
the facility. Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001). Therefore,
the latest day that Counts 2 and 7 could have accrued is May 21, 2015. Once
Plaintiff left the custody and control of the Menard defendants, his claims against
them would not have continued to accrue.
And, as any tolling provided by
Plaintiff’s grievance activity would have also ended May 21, 2015, Plaintiff would
have had to bring suit as to those claims no later than May 21, 2017. Instead he
waited approximately 7 weeks and filed suit on July 7, 2017—past the statute of
limitations. Plaintiff’s claims are all barred by the statute of limitations.
As this case will be dismissed with prejudice, Plaintiff’s Motion for
Recruitment of Counsel is DENIED as MOOT. (Doc. 3).
IT IS HEREBY ORDERED that Counts 1, 2 and 4 are dismissed with
prejudice as factually frivolous. Counts 3 and 5 are dismissed for failure to state
a claim upon which relief can be granted. Counts 6 and 7 are dismissed with
prejudice as legally frivolous. Additionally, all counts are barred by the statute of
The Court will accordingly dismiss the case with prejudice, enter
judgment, and close the case.
If Plaintiff wishes to appeal this dismissal, his notice of appeal must be filed
with this Court within thirty days of the entry of judgment.
FED. R. APP. P.
4(a)(1)(A). A motion for leave to appeal in forma pauperis should set forth the
issues Plaintiff plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If
Plaintiff does choose to appeal, he will be liable for the $505.00 appellate filing fee
irrespective of the outcome of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C.
§ 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan
v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d
464, 467 (7th Cir. 1998). Moreover, if the appeal is found to be nonmeritorious,
Plaintiff may also incur a “strike.” A proper and timely motion filed pursuant to
Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline. FED. R.
APP. P. 4(a)(4). A Rule 59(e) motion must be filed no more than twenty-eight (28)
days after the entry of the judgment, and this 28-day deadline cannot be extended.
IT IS SO ORDERED.
United States District Judge
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