The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
Steven Bell, )
)
Plaintiff, )
)
v. ) 20-4067
)
Nancy Lessard, et al. )
)
Defendants. )
)
)
Merit Review Order
The plaintiff, proceeding pro se, and currently detained at
Knox County Jail, 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).
Plaintiff alleges that Defendant Lessard interrupted a phone
with his attorney and placed him on a status called “minimums,”
that limits phone calls, including attorney calls, to five minutes.
Plaintiff alleges he was placed on 23-hour lockdown and not allowed
out of his cell during his attorney’s business hours. Plaintiff alleges
his attorney had to drive over an hour to meet with him in person.
Plaintiff alleges this “wasted valuable time in adjudicating his case”
and cause him to incur higher legal fees.
Plaintiff alleges that Defendant Brown brought him food, but
Defendants Stroud, Ingle, and Hill would not let Plaintiff eat it, and
that Defendants Nash and Cerventes failed to remedy the problem.
Plaintiff alleges that Defendants Lessard and Rumbould placed him
on mattress restriction and Defendant John Doe removed his
mattress from his cell. Plaintiff alleges that he was not provided
“any type of due process” prior to imposition of these restrictions.
Liberally construed, Plaintiff states a Fourteenth Amendment
claim against Defendants Lessard, Stroud, Ingle, Hill, and
Rumbould for inhumane conditions of confinement for the alleged
restrictions, a Fourteenth Amendment procedural due process
claim against Defendant Lessard, and a Fourteenth Amendment
failure-to-intervene claim against Defendants Nash and Cervantez.
See Budd v. Motley, 711 F.3d 840, 842 (7th Cir. 2013); Miller v.
Dobier, 634 F.3d 412, 415-16 (7th Cir. 2011); Gill v. City of
Milwaukee, 850 F.3d 335, 342 (7th Cir. 2017).
Plaintiff does not state a First Amendment access to the court
claim; delay and additional legal fees does not suggest that Plaintiff
suffered legal harm in the underlying case. Marshall v. Knight, 445
F.3d 965, 968 (7th Cir. 2006). Plaintiff’s continued detention and
online court records suggest that Plaintiff’s underlying criminal case
is still pending. See People v. Bell, No. 19 CF 251 (Knox Cty., Ill.)
(available at: http://www.9thjudicial.org/search.html) (last
accessed May 4, 2020). No plausible inference exists that Defendant
Brown contributed to the constitutional violations Plaintiff alleges.
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 a
Fourteenth Amendment claim against Defendants
Lessard, Stroud, Ingle, Hill, and Rumbould for inhumane
conditions of confinement for the alleged restrictions, a
Fourteenth Amendment procedural due process claim
against Defendant Lessard, and a Fourteeth Amendment
failure-to-intervene claim against Defendants Nash and
Cervantez. 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. The plaintiff is
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
discovery requests and responses. Discovery requests
and 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 Otis Brown as a
defendant.
12. The clerk is directed to attempt service on Defendants
Lessard, Hill, Nash, Ingle, Cerventez, Rumbould, and
Stroud pursuant to the standard procedures.
13. Plaintiff’s Motion to Preserve Evidence [5] is granted.
Defendants shall preserve any video evidence, if it exists,
for the area of the jail and dates described in Plaintiff’s
motion.
Entered this 7th day of May, 2020.
__s_/_ _H__a_r_o_ld__ A__. _B_a__k_e_r_______________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE