Willis v. Wolfe

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

BARNEY WILLIS, )

Plaintiff, )

)

vs. ) No. 20-4074

)

CHRISTINE BRANNON, et. al., )

Defendants. )

MERIT REVIEW ORDER

JAMES E. SHADID, U.S. District Judge:

This cause is before the Court for merit review of the Plaintiff’s complaint. 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.

Plaintiff, a pro se prisoner, claims Warden Christine Brannon, Acting Warding

Robert Hamilton, and Lieutenant Keith Wolfe violated his constitutional rights at East

Moline Correctional Center. Plaintiff says on June 11, 2019, he was getting a lunch tray

when Defendant Wolfe began striking him across his back from his right arm to his left

shoulder. When Plaintiff accused the officer of assaulting him, the Defendant said “take

it up with someone who cares.” (Comp., p. 5).

Plaintiff does not identify any specific injuries, but Plaintiff does state he was

admitted to the Health Care Unit for overnight observation and remained for two

nights.

Plaintiff spoke with an Internal Affairs officer who confirmed there was a video

recording of the assault.

Plaintiff is asking for Defendant Wolfe to be removed from his job and ordered to

take anger management classes.

The Plaintiff has alleged Defendant Wolfe violated his constitutional rights when

the Defendant used excessive force on June 11, 2019. However, Plaintiff has only

identified the Wardens in the list of Defendants. See Potter v Clark, 497 F.2d 1206, 1207

(7th Cir. 1974)(“Where a complaint alleges no specific act or conduct on the part of the

defendant and the complaint is silent as to the defendant except for his name appearing

in the caption, the complaint is properly dismissed, even under the liberal construction

to be given pro se complaints.”). Consequently, Plaintiff does not explain how either

Defendant Brannon or Hamilton are involved in his claims, and the mere fact that an

individual was a supervisor is insufficient to establish liability. See Smith v. Gomez, 550

F.3d 613, 616 (7th Cir. 2008)(supervisor liability not permitted under § 1983); Pacelli v.

DeVito, 972 F.2d 871, 877 (7th Cir. 1992)(supervisors are not liable for the errors of their

subordinates). Therefore, the Court will dismiss Defendants Brannon and Hamilton.

Plaintiff has also filed a motion for appointment of counsel. [5]. Plaintiff has no

constitutional right to the appointment of counsel and the Court cannot require an

attorney to accept pro bono appointment in a civil case. Instead, the most the Court can

do is ask for volunteer counsel. See Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th

Cir. 1992).

In considering Plaintiff’s motion, the Court must ask two questions: “(1) has the

indigent plaintiff made a reasonable attempt to obtain counsel or been effectively

precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff

appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007),

citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993).

Plaintiff has demonstrated some attempt to find counsel on his own.

Nonetheless, Plaintiff’s complaint clearly explains the basis for his claim against

Defendant Wolfe. In addition, Plaintiff’s claim of excessive force is not complex.

Plaintiff will be able to obtain a copy of any relevant video and medical records during

discovery. Finally, the Court will enter a Scheduling Order in this case after Defendant

files his answer to the complaint. The order will provide information to assist a pro se

litigant, and requires the exchange of initial, relevant discovery. Therefore, Plaintiff’s

motion is denied. [5].

IT IS THEREFORE ORDERED:

1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the

Court finds Plaintiff has alleged Defendant Keith Wolfe used excessive force in

violation of the Eighth Amendment on June 11, 2019. The claim is stated against

the Defendant in his individual capacities only. 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 Defendant before filing any motions, in order to give

Defendant notice and an opportunity to respond to those motions. Motions filed

before Defendant’s 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 Defendant by mailing Defendant a waiver of

service. Defendant has 60 days from service to file an Answer. If Defendant has

not filed an Answer or appeared through counsel within 90 days of the entry of

this order, Plaintiff may file a motion requesting the status of service. After

Defendant has 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

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) Defendant 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 Order. In general, an

answer sets forth Defendant’s positions. The Court does not rule on the merits of

those positions unless and until a motion is filed by Defendant. Therefore, no

response to the answer is necessary or will be considered.

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

Defendant pursuant to Local Rule 5.3. If electronic service on Defendant is not

available, Plaintiff will be notified and instructed accordingly.

7) Counsel for Defendant is hereby granted leave to depose Plaintiff at his place of

confinement. Counsel for Defendant 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) Within 10 days of receiving from Defendant’s counsel an authorization to

release medical records, Plaintiff is directed to sign and return the authorization

to Defendant’s Counsel.

IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:

1) Dismiss Defendants Christine Brannon and Robert Hamilton for failure to

state a claim upon which relief can be granted pursuant to by 28 U.S.C. §1915A;

2) Deny Plaintiff’s motion for appointment of counsel, [5]; 3) Attempt service

on Defendant Wolfe pursuant to the standard procedures; 4) 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; and 5) Enter the Court's

standard qualified protective order pursuant to the Health Insurance

Portability and Accountability Act.

ENTERED this 18th day of June, 2020.

s/ James E. Shadid

____________________________________________

JAMES E. SHADID

UNITED STATES DISTRICT JUDGE