The opinion
CENTRAL DISTRICT OF ILLINOIS
STEVEN BELL, )
)
Plaintiff, )
)
v. ) 19-CV-4126
)
LONKA, et al., )
)
Defendants. )
MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se, was granted leave to proceed
in forma pauperis. The case is now before the court for a merit
review of plaintiff’s claims. The court is required by 28 U.S.C. §
1915A to “screen” the plaintiff’s complaint, and through such
process to identify and dismiss any legally insufficient claim, or the
entire action if warranted. A claim is legally insufficient if it “(1) is
frivolous, malicious, or fails to state a claim upon which relief may
be granted; or (2) seeks monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. § 1915A.
In reviewing the complaint, the court accepts the factual
allegations as true, liberally construing them in the 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)(citation
omitted). The court has reviewed the complaint and has also held a
merit review hearing in order to give the plaintiff a chance to
personally explain his claims to the court.
Plaintiff is currently detained at the Knox County Jail.
However, plaintiff’s claims arise from his detention at the Henry
County Jail (“Jail”). Plaintiff alleges that Jail Defendants J.
Lessard, Ford, Tennant, Stroud, and Milroy “brutally assaulted”
him after Plaintiff got into a verbal altercation with other,
unidentified correctional officers. Plaintiff alleges that Defendants
alleges that he was detained in a suicide watch cell without “water
[he] could drink” and that staff denied his requests for water.
Plaintiff alleges that Defendant N. Lessard snatched the phone away
from him on one occasion, and placed Plaintiff on “minimums”
without a hearing.
Plaintiff states a Fourteenth Amendment Due Process claim for
excessive force against Defendants J. Lessard, Ford, Tennant,
Stroud, and Milroy. Kingsley v. Hendrickson, 135 S. Ct. 2466
(2015). Plaintiff also states a Fourteenth Amendment claim against
Defendant Martija and Hayes for failure to provide adequate
medical care. Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir.
2018).
Plaintiff does not state a due process claim against Defendant
N. Lessard because he has not sufficiently alleged that he suffered
an “atypical and significant” deprivation required to trigger due
process concerns. Lisle v. Welborn, 933 F.3d 705, 720-21 (7th Cir.
2019). Plaintiff does not state a claim for the denial of access to the
courts because he has not alleged that the denial of one phone call
resulted in prejudice to a potentially meritorious claim, nor does he
provide enough information to state a claim about the denial of
drinking water. Marshall v. Knight, 445 F.3d 965, 968 (7th Cir.
2006); Budd v. Motley, 711 F.3d 840, 842 (7th Cir. 2013).
IT IS THEREFORE ORDERED:
1. Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the court finds that the plaintiff states Fourteenth
Amendment Due Process claims for excessive force against
Defendants J. Lessard, Ford, Tennant, Stroud, and Milroy and for
failure to provide adequate medical care against Defendants
Martija and Hayes. 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.
advised to wait until counsel has appeared for the defendants
before filing any motions, in order to give the 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. The 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 the defendants by
mailing each defendant a waiver of service. The defendants have 60
days from the date the waiver is sent to file an answer. If the
defendants have not filed answers or appeared through counsel
within 90 days of the entry of this order, the plaintiff may file a
motion requesting the status of service. After the defendants have
been served, the court will enter an order setting discovery and
dispositive motion deadlines.
4. With respect to a defendant who no longer works at the
address provided by the 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.
5. The defendants shall file an answer within 60 days of the
date the waiver 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. In general, an
answer sets forth the defendants' positions. The court does not rule
on the merits of those positions unless and until a motion is filed by
the defendants. Therefore, no response to the answer is necessary
or will be considered.
6. This district uses electronic filing, which means that,
after defense counsel has filed an appearance, defense counsel will
automatically receive electronic notice of any motion or other paper
filed by the plaintiff with the clerk. The plaintiff does not need to
mail to defense counsel copies of motions and other papers that the
plaintiff has filed with the clerk. However, this does not apply to
responses are not filed with the clerk. The plaintiff must mail his
discovery requests and responses directly to defendants' counsel.
Discovery requests or responses sent to the clerk will be returned
unfiled, unless they are attached to and the subject of a motion to
compel. Discovery does not begin until defense counsel has filed an
appearance and the court has entered a scheduling order, which
will explain the discovery process in more detail.
7. Counsel for the defendants is hereby granted leave to
depose the plaintiff at his place of confinement. Counsel for the
defendants shall arrange the time for the deposition.
8. The plaintiff shall immediately notify the court, in
writing, of any change in his mailing address and telephone
number. The 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.
Marshals 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. The clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability and
Accountability Act.
11. The clerk is directed to terminate Lonka, Rumbould,
Cervantez, Nash, Nancy Lessard, Gernant, Hill, Jontz, A. Burrows,
Otis Brown, Ingle, Cincinatti of Care, and All and any unmentioned
or unknown members of the emergency response team on May 24,
2019 as defendants.
12. The clerk is directed to attempt service on the remaining
defendants pursuant to the standard procedures.
13. A digital recording of the merit review hearing has been
attached to the docket.
granted. Clerk is directed to enter the Court’s standard text order
granting the motion and assessing an initial filing fee.
Entered this 15th day of October, 2019
/s/Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE