The opinion
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
TOMMY MARSHALL, )
Plaintiffs, )
)
v. ) Case No. 20 -CV-4004
)
GREGG SCOTT, et. al., )
Defendants. )
CASE MANAGEMENT ORDER
This cause is before the Court for consideration of Plaintiffs’ complaint, motion
for leave to proceed in forma pauperis (IFP), and motion for emergency injunctive relief.
[1, 3, 5]. The pro se Plaintiff is civilly detained in the Rushville Treatment and Detention
Center. Before considering Plaintiff’s motion for injunctive relief, the Court must first
review Plaintiff’s allegations and IFP motion.
I. COMPLAINT AND MOTION TO PROCEED IFP
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 alleges his constitutional rights were violated by Program Director
Gregg Scott, Security Director James McCurry, Clinical Director S. Jumper, Team
Leader G. Carreon, Security Staff Member C. Parsons, Investigator Jeremie Seymour,
Behavior Committee Members, and an unknown “Blue Team” Therapist. (Comp., p. 1).
On September 10, 2019, Plaintiff was moved to Security Management Status after
he was accused of assaulting a staff member. Plaintiff says Security Management Status
requires “solitary confinement” for 23 hours each day. (Comp., p. 4). On September 13,
2019, Defendant Investigator Seymour told Plaintiff he was referring his report to the
local States Attorney’s Office for consideration of criminal charges.
A few days later, Behavior Committee Members Jumper, Carreon, and Parsons
found Plaintiff had violated the institutional rule of “Battery to any Person.” (Comp, p.
4). Plaintiff does not state what specific discipline he received for the rule violation.
However, Plaintiff claims the Behavior Committee along with Defendants Scott,
McCurry, Seymour, and the Blue Team Therapist decided Plaintiff would remain on
Secure Management Status pending resolution of potential criminal charges.
Plaintiff says four months later he is still in solitary confinement and no criminal
charges have been filed. Plaintiff says he has complied with all rules during this time
and he has repeatedly requested his return to general population. Nonetheless, Plaintiff
remains on Secure Management Status based on the possibility of criminal charges at
some unspecified time. Plaintiff says Defendants have violated his Fourteenth
Amendment rights because he has been denied “a realistic chance” to be released back
to general population. (Comp., p. 5).
The Court notes civil detainees such as the Plaintiff may be punished for
violating institutional rules as long as they are given notice and an opportunity for a
hearing. West v. Schwebke, 333 F.3d 745, 748 (7th Cir. 2003). Plaintiff admits the Behavior
Committee found him guilty of battery and he does not allege his initial due process
rights were violated. However, Plaintiff appears to claim he has remained in
segregated confinement for months only because the Defendants think there is a
possibility of criminal charges at some unspecified time. If Defendants can demonstrate
their “use of seclusion was justified on security grounds,” then Plaintiff’s claim will fail.
Id. Nonetheless, for the purpose of notice pleadings, Plaintiff has alleged a due process
violation.
Plaintiff has also made a general allegation that all named Defendants were
involved in continuing his Secure Management Status. However, Plaintiff must be able
to demonstrate each was personally involved in the decision and must identify any Jane
or John Doe Defendant during discovery.
II. MOTION FOR EMERGENCY INJUNCTIVE RELIEF
Plaintiff has also filed a Motion for a Temporary Restraining Order (TRO) and
Preliminary Injunction. [5]. A TRO can be issued without notice to the party to be
enjoined, but it may last no more than fourteen days. Fed. R. Civ. P. 65(b)(2). A court
may only grant the motion if “specific facts in an affidavit or a verified complaint
clearly show that immediate or irreparable injury, loss, or damage will result to the
movant before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A).
This relief is warranted “to prevent a substantial risk of injury from ripening into actual
harm.” Farmer v. Brennan, 511 U.S. 825, 845 (1994). A TRO is an “emergency remedy”
designed to “maintain the status quo until a hearing can be held on an application for a
preliminary injunction.” Crue v. Aiken, 137 F.Supp.2d 1076, 1082 (C.D.Ill. April 6, 2001).
On the other hand, a preliminary injunction can be issued only after the adverse
party is given notice and an opportunity to oppose the motion. See Fed. R. Civ. P.
65(a)(1). “A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is
in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)
(citations omitted). See also Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Woods v.
Buss, 496 F.3d 620, 622 (7th Cir. 2007); Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999).
A preliminary injunction is “an extraordinary and drastic remedy, one that should not
be granted unless the movant, by a clear showing, carries the burden of persuasion.”
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).
Plaintiff again states he has remained in Secure Management Status for four
months despite his compliance with facility rules. Plaintiff again states Defendants
have continued his segregated confinement only because he might face criminal
charges. Plaintiff argues his conduct demonstrates he is no longer a threat to others in
the facility, and he should return to general population.
Plaintiff has filed a lawsuit to address his claims and therefore Plaintiff has an
adequate remedy at law. Plaintiff has not provided specific facts to demonstrate the
need for emergency injunctive relief to prevent an immediate or irreparable injury. In
addition, Plaintiff has not demonstrated a likelihood of success on the merits based on
his allegations. Plaintiff’s motion for a TRO and preliminary injunction are denied.
IT IS THEREFORE ORDERED:
1. Plaintiff's petition to proceed in forma pauperis is granted. [3]. Pursuant
to a review of the Complaint, the Court finds that Plaintiff alleges the Defendants
violated his due process rights when he was forced to remain in segregated
confinement for four months based only on the possibility of criminal charges. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
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
deposition.
8. 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
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. 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).
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 attempt service on Defendants pursuant to the
standard procedures.
12. Plaintiff’s motion for a Temporary Restraining Order and Preliminary
Injunction is denied. [5].
ENTERED this 21st day of January, 2020.
s/James E. Shadid
__________________________________________
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE