The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
STEVEN TALIANI, )
Plaintiff, )
)
vs. ) Case No. 23-4025
)
CHRISTINE BRANNON- )
DORTCH, 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 claims Hill Correctional Center Warden Christine Brannon-Dortch and
unknown Jane or John Doe Defendants violated his First Amendment rights. Plaintiff
says unknown correctional staff monitored and censored his outgoing electronic
messages on or about February 19, 2021 and July 6, 2021. Plaintiff filed grievances and
his counselor noted the messages were denied pursuant to bulletin from the Warden
stating incoming and outgoing messages could not contain symbols. (Comp, p. 20)
The grievance counselor further explained outgoing mail could be withheld “if it
presents a threat to security or safety, including the following: 4) The letter is in code
and its contents cannot be understood by correctional staff.” (Comp., p. 26). The
counselor said: “[s]ymbols are considered to be coded contents and, as such, are not
eligible for processing.” (Comp., p. 26).
Plaintiff says his two censored messages were sent to family members and he
closed each communication with a heart emoji. (Comp, p. 24, 25). There were no other
symbols included.
Plaintiff also says the Warden’s bulletin concerning this message was not posted,
but he requested a copy after his messages were confiscated. The October 15, 2020
statement says “I-Mail messages” may not contain “emojis or symbols-messages may
only contain letters, numbers, and punctuation.” (Comp, p. 29).
Plaintiff says staff members stopped a third electronic message he attempted to
send to his father on January 20, 2022. The message did not contain symbols. Plaintiff
again filed a grievance, and the grievance counselor listed the many reasons a message
could be withheld. None obviously applied to Plaintiff’s message.
However, the grievance officer admitted the message was inappropriately
flagged as an attempted “third party communication.” (Comp, p. 37). The officer stated
Plaintiff’s message was instead referring to his brother, and “staff have been educated
on this.” (Comp., p. 37). The grievance was affirmed, and Plaintiff was reimbursed for
the cost of the confiscated message.
Plaintiff claims preventing him from sending the messages violated his
constitutional rights. The First Amendment “applies to communications between an
inmate and an outsider.” Zimmerman v. Tribble, 226 F.3d 568, 572 (7th Cir. 2000). “A
valid mail interference claim requires an allegation that there has been ‘a continuing
pattern or repeated occurrences’ of denial or delay of mail delivery.” Sharp v. Jeffreys,
2022 WL 622009, at *2 (S.D.Ill. March 3, 2022), quoting Zimmerman, 226 F.3d at 572.
The Seventh Circuit instructs courts to apply a two-prong test to determine
whether censorship of an inmate’s outgoing mail violates the First Amendment.
First, the regulation or practice in question must further an important or
substantial governmental interest unrelated to the suppression of expression.
Such interests include security, order, and rehabilitation. Second, the
challenged action must be no greater than is necessary or essential to the
protection of that interest. Koutnik v. Brown, 456 F.3d 777, 784 (7th Cir. 2006)
(internal citation omitted).
Plaintiff claims Defendants cannot demonstrate the repeated censorship of his
electronic messages meets either prong of this test. Plaintiff may proceed with his First
Amendment claim.
Plaintiff has adequately alleged a claim against the Warden. After the Defendant
is served, Defendants must clarify if any other individuals were involved in the decision
to censor Plaintiff’s messages. The claim against the Warden is an individual capacity
claim, and an official capacity claim based on a policy or practice which led to an
alleged constitutional violation. See Monell v. Dep't of Soc. Servs. of City of New York, 436
U.S. 658 (1978).
IT IS THEREFORE ORDERED:
1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the
Court finds the Plaintiff alleges Defendants Brannon-Dortch and Jane or John
Doe Defendants violated his First Amendment rights. The claim against the
Warden is both an individual and official capacity claim. 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) Attempt service on the Defendant Warden 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 12th day of April, 2023.
s/James E. Shadid
_________________________________________
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE