Warren v. McQueen

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

FREDERICK WARREN, #B58882, )

)

Plaintiff, )

vs. ) Case No. 3:21-cv-00575-SMY

)

MCQUEEN, )

)

Defendant. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Frederick Warren, an inmate of the Illinois Department of Corrections currently

incarcerated at Lawrence Correctional Center, filed the instant lawsuit pursuant to 42 U.S.C. §

1983 for an alleged deprivation of his constitutional rights. This case is now before the Court for

preliminary review of the Complaint under 28 U.S.C. § 1915A. Any portion of the Complaint that

is legally frivolous, malicious, fails to state a claim for relief, or requests money damages from an

immune defendant must be dismissed. 28 U.S.C. § 1915A(b).

The Complaint

Plaintiff makes the following allegations in the Complaint (Doc. 1): During evening

medication distribution on November 14, 2019, Plaintiff did not receive his prescribed pain

medication. As he attempted to explain this issue to the nurse, Sgt. McQueen yelled at him that

he was taking too long at the window. Plaintiff then tried to explain the issue to Sgt. McQueen,

but he would not listen. Plaintiff asked to speak to the zone lieutenant because Sgt. McQueen was

interfering with the nurse giving him his medication. Sgt. McQueen responded that he would not

call the lieutenant and then attacked Plaintiff, grabbing him by the neck and choking him until he

became light-headed. Sgt. McQueen also kicked plaintiff in the left shin causing an abrasion.

Based on the allegations in the Complaint, the Court designates the following claim in this

pro se action:

Count 1: Eighth Amendment claim against McQueen for use of excessive

force on Plaintiff on November 14, 2019.

Any claim that is mentioned in the Complaint but not addressed in this Order is dismissed without

prejudice as inadequately pled under the Twombly pleading standard. See Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim upon which relief can be

granted if it does not plead “enough facts to state a claim that is plausible on its face.”).

Discussion

The Eighth Amendment protects prisoners from being subjected to cruel and unusual

punishment. Brown v. Budz, 398 F.3d 904, 909 (7th Cir. 2005). “Correctional officers violate the

Eighth Amendment when they use force not in a good faith effort to maintain or restore discipline,

but maliciously and sadistically for the very purpose of causing harm.” Wilborn v. Ealey, 881 F.3d

998, 1006 (7th Cir. 2018). The allegations in the Complaint are sufficient for Plaintiff to proceed

on the claim in Count 1 against McQueen.

Disposition

The Eighth Amendment use of excessive force claim in the Complaint (Doc. 1) will

proceed against Defendant McQueen.

The Clerk shall prepare for McQueen: (1) Form 5 (Notice of a Lawsuit and Request to

Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is

DIRECTED to mail these forms, a copy of the Complaint, and this Memorandum and Order to

Defendant’s place of employment as identified by Plaintiff. If Defendant fails to sign and return

the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the date the forms

were sent, the Clerk shall take appropriate steps to effect formal service on the Defendant, and the

Court will require the Defendant to pay the full costs of formal service, to the extent authorized by

the Federal Rules of Civil Procedure.

If Defendant cannot be found at the work address provided by Plaintiff, the employer shall

furnish the Clerk with the Defendant’s current work address, or, if not known, the Defendant’s

last-known address. This information shall be used only for sending the forms as directed above

or for formally effecting service. Any documentation of the address shall be retained only by the

Clerk and shall not be maintained in the court file or disclosed by the Clerk.

Defendant is ORDERED to timely file an appropriate responsive pleading to the

Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g). Pursuant to

Administrative Order No. 244, Defendant need only respond to the issues stated in this Merit

Review Order.

Plaintiff is ADVISED that if judgment is rendered against him and the judgment includes

the payment of costs under 28 U.S.C. §1915, he will be required to pay the full amount of the

costs. See 28 U.S.C. § 1915(f)(2)(A).

Plaintiff is further ADVISED that he is under a continuing obligation to keep the Clerk of

Court and the opposing party informed of any change in his address; the Court will not

independently investigate his whereabouts. This shall be done in writing and not later than 7 days

after a transfer or other change in address occurs. Failure to comply with this order will cause a

delay in the transmission of court documents and may result in dismissal of this action for want of

prosecution. See Fed. R. Civ. P. 41(b).

Based on the allegations in the Complaint, the Clerk of Court is DIRECTED to ENTER

the standard qualified protective order pursuant to the Health Insurance Portability and

Accountability Act.

IT IS SO ORDERED.

DATED: June 28, 2021

s/ Staci M. Yandle_____

STACI M. YANDLE

United States District Judge

Notice to Plaintiff

The Court will take the necessary steps to notify the Defendant of your lawsuit and serve

him with a copy of your Complaint. After service has been achieved, Defendant will enter an

appearance and file an Answer to your Complaint. It will likely take at least 60 days from the date

of this Order to receive the Defendant’s Answer, but it is entirely possible that it will take 90 days

or more. When Defendant has filed his Answer, the Court will enter a Scheduling Order containing

important information on deadlines, discovery, and procedures. Plaintiff is advised to wait until

counsel has appeared for Defendant before filing any motions, to give the 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 specifically directed to do so.