Opinion

Bell v. Lessard

Court
District Court, C.D. Illinois
Filed
May 7, 2020
Cited by
0 cases
Authority
More cited than 20.6%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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