# Phillips v. Punke

> District Court, C.D. Illinois · November 1, 2019

URL: https://www.frixlaw.com/law-library/cases/10135617

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** November 1, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS

ANTOLINO PHILLIPS, )
)
Plaintiff, )
v. ) No.: 19-cv-1271-MMM
)
SCOTT PUNKE and . PRENTISS, )
)
Defendants. )

MERIT REVIEW ORDER

Plaintiff, proceeding pro se, pursues a § 1983 action for excessive force, inhumane
conditions of confinement, retaliation, and deliberate indifference to his serious medical needs at
the Pontiac Correctional Center (“Pontiac”). The case is before the Court for a merit review
pursuant to 28 U.S.C. § 1915A. 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, 649-51 (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. United States, 721 F.3d 418, 422 (7th Cir. 2013)(citation and internal quotation
marks omitted). While the pleading standard does not require “detailed factual allegations”, it
requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Wilson v.
Ryker, 451 Fed. Appx. 588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
Plaintiff filed his complaint on August 9, 2019, alleging events which occurred from
April 12, 2017 through April 21, 2017. On April 12, 2017, Plaintiff was taken to segregation by
Defendant Punke after having assaulted Defendant Punke. Plaintiff claims that Defendant overly
tightened the handcuffs and jerked Plaintiff’s hands “in all directions.” Plaintiff asserts that this
caused deep, bleeding lacerations to his wrists. Plaintiff was thereafter placed in a strip-out cell
which had feces, blood and semen on the walls and floors. Plaintiff claims that he was in this
excessively cold cell for nine days, without a blanket.
Plaintiff complained of the conditions to Defendant Major Prentiss, requesting that the
cell be cleaned or that he be provided cleaning supplies. Defendant refused this request as well

as Plaintiff’s request for medical treatment to his wrists. Plaintiff claims that the unsanitary
conditions made him “very sick” without providing any detail as to how it sickened him. He also
claims that he suffered joint pain in his left elbow and shoulder and numbness of his left thumb
and forefinger, due to Defendant Punke’s alleged use of excessive force.
Plaintiff claims that he wrote related grievances and, when he checked their status,
discovered that they had never been received. Plaintiff believes that Defendant Prentiss
intercepted and destroyed them. He includes with his complaint, however, two written
grievances. One is dated May 9, 2017 and the other May 22, 2017. Both have “Handwritten
copy” noted at the top. It is unclear, therefore, whether these are original copies or re-created

copies of the allegedly destroyed grievances. Plaintiff also provides an August 14, 2017 decision
of the Administrative Review Board regarding a May 22, 2017 grievance complaining of:
“4/12/17 – Strip out status, (24 hrs).” This grievance was returned to Plaintiff with instructions
that he submit it for institutional review by the Counselor, Grievance Officer and Chief
Administrative Officer.
In his complaint, Plaintiff asserts an excessive force claim against Defendant Punke and
inhumane conditions of confinement, deliberate indifference to a serious medical need and
retaliation against Defendant Prentiss. He requests compensatory and punitive damages.
The Court notes that Plaintiff filed his complaint more than two years after the events at
issue. Claims brought under § 1983 are generally governed by a two-year statute of limitations.
Draper v. Martin, 664 F.3d 1110, 1113 (7th Cir. 2011) ("[i]n Illinois, the statute of limitations
period for § 1983 claims is two years, 735 ILCS 5/13-201”). See also, Bray v. Gary Police
Dept. Chief, No. 10-229, 2010 WL 2674531 (N.D. Ind. June 28, 2010) (“[t]he statute of

limitations is an affirmative defense, but if a plaintiff “pleads facts that show his suit is time-
barred or otherwise without merit, he has pleaded himself out of court.”) See also, Davenport v.
Dovgin, 545 Fed.Appx. 535, 538 (7th Cir. 2013). “[A] court may dismiss a claim as time–barred if
the complaint sets forth the necessary information to show that the statute of limitations has expired”.
The statute of limitations will be tolled, however, during the time period a prisoner
exhausts his grievances. See Johnson v. Rivera, 272 F.3d 519, 521-22 (7th Cir. 2001). Here,
Plaintiff provides evidence that one of his complaints, likely that grieving the conditions of
confinement in segregation, went through the grievance process through August 14, 2017. As a
result, the statute of limitations was tolled, and the August 8, 2019 complaint was timely filed, at
least as to this issue. While it is not clear that the statute of limitations was tolled as to all of

Plaintiff’s claims, the Court does not have enough information at this time, and will allow the
matter to proceed, as indicated in this order.
The Court finds that Plaintiff has pled enough to state a colorable claim of excessive
force against Defendant Punke. He has also successfully pled an inhumane conditions of
confinement and deliberate indifference claim against Defendant Prentiss. Plaintiff has not,
however, pled a colorable retaliation claim. Plaintiff has asserted that Defendant Prentiss
retaliated against him for having assaulted an officer, likely, Defendant Punke. To successfully
plead retaliation, however, Plaintiff must assert that he suffered retaliation in response to the
exercise of a constitutionally protected right. Pearson v. Welborn, 471 F.3d 732, 738 (7th Cir.
2006). Plaintiff does not, of course, have a constitutionally protected right to assault an officer.
See Watkins v. Kasper, 599 F.3d 791, 799 (7th Cir. 2010) (“if a prisoner violates a legitimate
prison regulation, he is not engaged in ‘protected conduct,’ and cannot proceed beyond step one
of a First Amendment retaliation claim.”) (Internal citation omitted). The retaliation claim is
DISMISSED.

IT IS THEREFORE ORDERED:
1. This case shall proceed solely on the excessive force claim against Defendant
Punke and the inhumane conditions of confinement, and deliberate indifference claim against
Defendant Prentiss. Plaintiff’s retaliation claim is DISMISSED. All other claims will not be
included in the case, except in the Court's discretion upon motion by a party for good cause
shown, or by leave of court pursuant to Federal Rule of Civil Procedure 15.
2. 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.

3. 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.
4. Defendants shall file an answer within the 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.
5. 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.
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.
6. 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.

7. 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.
8. 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.
9. Plaintiff files [5], a motion for recruitment of pro bono counsel and later filed
exhibit [8]. While the exhibit contains a handwritten list of several attorneys’ offices, it does not
indicate that Plaintiff contacted them and made attempts to secure counsel on his own. Pruitt v.
Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). [5] is DENIED at this time. In the event Plaintiff
renews his motion for appointment of counsel, he is to provide copies of the letters sent to, and
received from, the attorneys he has contacted.

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 OF
FORMAL SERVICE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(d)(2).
ENTERED: ___1_1_/1_/_2_0_1_9_______

_____s/Michael M. Mihm______
MICHAEL M. MIHM
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10135617. Public record. Not legal advice.