Rogers v. Love

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

UDELL ROGERS, )

Plaintiff, )

)

vs. ) Case No. 21-4048

)

KWAME RAOUL, et. al., )

Defendants )

MERIT REVIEW ORDER #2

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

This cause is before the Court for consideration of Plaintiff’s motion for leave to

file an amended complaint. [12].

I. BACKGROUND

Plaintiff’s initial complaint was dismissed for failure to state a claim upon which

relief could be granted pursuant to 28 U.S.C. §1915A and as a violation of Federal Rule

of Civil Procedure 8. See September 21, 2021 Merit Review Order. Plaintiff provided two

separate and confusing complaint forms and failed to provide time frames, failed to

state how each Defendant was involved in his claims, and failed to provide enough

information to put the Court and Defendants on notice of his claims.

The Court allowed Plaintiff additional time to file an amended complaint along

with instructions to assist him in clarifying his claims. For instance, Plaintiff was

advised to “list his allegations only one time,” include numbered paragraphs, and

briefly provide the basis for his claims. September 21, 2021 Merit Review Order, p. 3.

Plaintiff was also advised to limit his complaint to his specific claims against the

Defendants and not his general opinions.

Plaintiff has now filed his proposed amended complaint which has been filed as

a Motion for Leave to Amend. [12]. The motion is granted pursuant to Federal Rule of

Civil Procedure 15. [12]

II. MERIT REVIEW

The Court is still required by 28 U.S.C. §1915A to “screen” the Plaintiff’s

amended 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 has identified nine Defendants including Illinois Attorney General

Kwame Raoul, Illinois Department of Corrections (IDOC) Director Rob Jeffreys, Illinois

Prisoner Review Board (PRB) Chairman Craig Findley, Clinical Services Representative

Dorrie Love, Clinical Services Director Chad Schuldt, Caseworker Stanley Simonson,

Field Services Representative Lloyd Sichling, Correctional Officer Roy Little, and Kevin

Johnson.

Plaintiff has ignored many of the Court’s instructions. For instance, Plaintiff

repeats his claims several times in various sections entitled “Nature of the Action,” a

facts section, and in six purported “counts.” (Amd. Comp., 12). Plaintiff again fails to

provide timelines for many of his allegations and makes general, opinion statements

without providing factual support. Therefore, it is again difficult to decipher and

discern many of Plaintiff’s intended claims.

Nonetheless, Plaintiff does state he was convicted of criminal sexual abuse and

he has served his required term of incarceration. Plaintiff appears to allege Defendants

Sichling, Love, Simonson, and Schuldt have refused to approve proposed placement on

mandatory supervised release (MSR) and/or have failed to assist him in finding an

alternative host site. Plaintiff is apparently claiming he has remained in prison when he

should have been eligible for MSR and he therefore seeks monetary damages for this

time.

“Plaintiff's allegation that he was incarcerated for longer than he should have

been because of Defendants’ deliberate indifference states an Eighth Amendment claim

that cannot be dismissed at this juncture.” See Ortega v. Halliday, 2020 WL 6681376, at *5

(S.D.Ill. Nov.12, 2020)(inmate states claim based on a MSR denial); citing Childress v.

Walker, 787 F.3d 438, 439 (2015) (citations omitted) (“incarcerating a person beyond the

term of his sentence without penological justification violates the Eighth Amendment as

cruel and unusual punishment.”).

In addition, Plaintiff has also adequately alleged the same Defendants violated

his Fourteenth Amendment rights when they rejected his proposed host site and failed

to investigate other sites. See Ortega, 2020 WL 6681376, at *4, 5.

The remainder of Plaintiff’s amended complaint fails to clearly state a claim or

fails to provide factual support for the allegation. For instance, Plaintiff claims

Defendants Schiling and Johnson violated his First Amendment rights when they wrote

false, retaliatory disciplinary tickets against him. However, to state a retaliation claim, a

plaintiff must allege that “(1) he engaged in activity protected by the First Amendment;

(2) he suffered a deprivation that would likely deter First Amendment activity in the

future; and (3) the First Amendment activity was at least a motivating factor in the

[d]efendants' decision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546

(7th Cir.2009) (internal quotations omitted). Plaintiff has failed to identify a protected

activity which sparked the retaliatory conduct and therefore he has failed to state a

claim.

Plaintiff claims Defendant Little informed other inmates of the basis of his

criminal conviction placing Plaintiff’s life in danger and leading to an altercation with

other inmates. Despite the Court’s specific admonition that for each claim, Plaintiff

must state “when it occurred, and who was involved,” Plaintiff has failed to provide

any other factual support for this allegation. September 21, 2021 Merit Review Order, p.

3). Therefore, he has failed to provide enough information to put the Defendant on

notice of his specific claim.

Plaintiff also includes several confusing allegations concerning his attempt to

obtain MSR which appear to confuse the role of the Illinois Department of Corrections

(IDOC) and the Prisoner Review Board (PRB).

Even if the PRB approves an individual for MSR, the IDOC will not extricate

that person unless and until he or she satisfies certain conditions, most

importantly securing a qualifying host site to reside at while on MSR. The IDOC

exercises the sole power to approve or deny an inmate's proposed host site based

on a variety of statutes and regulations that restrict where sex offenders may live

while on MSR. Ultimately, a parole agent must okay the placement.

In the case of a someone who is labeled a sex offender, a variety of other statutes

and rules also kick in to restrict where and how that individual may reside.

Murphy v. Raoul, 380 F.Supp.3d 731, 739 (N.D.Ill. March 31, 2019).

Therefore, Plaintiff’s vague allegations concerning “custom, practice, or policy”

or “application of the requirements” do not provide sufficient notice of his intended

claims. (Amd. Comp, p. 6). It’s not clear what specific policy or what specific

application he is referencing.

Plaintiff’s amended complaint also includes other vague allegations of

harassment and discrimination without providing a factual basis for a constitutional

claim.

Therefore, Plaintiff may proceed with his Eighth and Fourteenth Amendment

claims against Defendants Sichling, Love, Simonson, and Schuldt. The Court notes

Plaintiff mentions denials of host cites in 2015, 2018, and 2020. However, Plaintiff may

only proceed with his claims from 2020, since any other claims are outside the two-year

statute of limitations period. See Williams v. Lampe, 399 F.3d 867, 870 (7th Cir. 2005)

(“§ 1983 claims in Illinois are also governed by a two-year limitations period.”).

Plaintiff has appropriately requested damages and Plaintiff is reminded he

cannot seek his release in a lawsuit pursuant to 42 U.S.C. §1983. See Edwards v. Balisok,

520 U.S. 641, 645 (1997)(“habeas corpus is the exclusive remedy for a state prisoner who

challenges the fact or duration of his confinement and seeks immediate or speedier

release…”).

If the Plaintiff believes the Court has misinterpreted any other claim, Plaintiff has

the option to file a Second Amended Complaint. However, the Court will not consider

any additional proposed complaints which do not follow these specific instructions:

1) Any proposed amended complaint must include all claims and defendants

and must stand complete on its own without reference to any previous

complaint or filing.

2) Any proposed complaint MUST include numbered paragraphs and must

include only ONE statement of each claim. Therefore, Plaintiff should not

provide an opening paragraph or statement of facts. Plaintiff should instead state

each claim one time to avoid confusion.

3) For each claim, Plaintiff must state who was involved, how they were

involved, when it occurred, and what happened.

4) Plaintiff should not include an overview of the law or general opinions.

Instead, he must limit his complaint to his specific claims against the named

Defendants.

5) Plaintiff must explain how each Defendant was specifically involved in each

claim.

Any proposed amended complaints which do not follow the Court’s order will

be dismissed.

IT IS THEREFORE ORDERED:

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

1915A, the Court finds the Plaintiff alleges Defendants Sichling, Love, Simonson,

and Schuldt: a) violated his Eighth Amendment rights when they refused to

approve proposed placement on mandatory supervised release (MSR) and/or

have failed to assist him in finding an alternative host site causing Plaintiff to be

incarcerated longer than he should have; and b) violated his Fourteenth

Amendment rights when they rejected his proposed host site and failed to

investigate other sites. The claims are stated against the Defendants in their

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 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 mailing each Defendant a

waiver of service. Defendants have 60 days from service 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 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

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 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 Defendants' positions. The Court does not rule on the merits of

those positions unless and until a motion is filed by Defendants. 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

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 his 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.

IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:

1) Grant Plaintiff’s Motion for Leave to File an Amended Complaint, [12]; 2)

Dismiss Defendants Raoul, Jeffreys, Findley, Little, Johnson, and Jane or John

Does for failure to state a claim upon which relief can be granted pursuant to

by 28 U.S.C. §1915A; 3) Attempt service on Defendants pursuant to the

standard procedures; and 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.

ENTERED this 1st day of April, 2022.

s/ James E. Shadid

____________________________________________

JAMES E. SHADID

UNITED STATES DISTRICT JUDGE