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Whitfield v. Walker

March 10, 2006

BENYEHUDAH WHITFIELD, PLAINTIFF,
v.
ROGER E. WALKER ET AL., DEFENDANTS.



The opinion of the court was delivered by: Harold A. Baker United States District Judge

Case Management Order

IT IS ORDERED THAT:

1) The defendants' motion to dismiss (d/e 72) is granted in part and denied in part as follows:

a) Defendants' motion to dismiss the strip search claim is denied. "[A] strip search of a male prisoner in front of female officers, if conducted for a legitimate penological purpose, would fail to rise to the level of an Eighth Amendment violation." Calhoun v. DeTella, 319 F.3d 936, 989 (2003), quoting Johnson v. Phelan, 69 F.3d 144, 150-51 (7th Cir. 1995). However, the plaintiff may be able to recover under the Eighth Amendment if the search was "conducted in a harassing manner intended to humiliate and inflict psychological pain." Id. This inquiry more appropriately for summary judgment.

b) Defendants are correct that the plaintiff cannot seek injunctive relief for past violations, Stewart v. McGinnis, 5 F.3d 1031, 1037 (7th Cir. 1993)(injunctive relief cannot be based on "past wrongs alone"). However, the court believes a more detailed record is necessary to determine exactly what relief the plaintiff seeks.

c) Damages sought against the defendants in their official capacities are dismissed as barred by the Eleventh Amendment. Wynn v. Southward, 251 F.3d 588, 591 (7th Cir. 2001). However, the defendants remain in the case in their official capacities to the extent not barred by the Eleventh Amendment.

2) The plaintiff's motion to compel is denied (d/e 123). The defendants' response shows that they have appropriately responded, or that the plaintiff's requests are overly broad and unduly burdensome, or that the plaintiff should already have copies of what he seeks. Additionally, the defendants correctly point out that they are not required to subsidize the plaintiff's litigation costs. Lewis v. Sullivan, 279 F.3d at 528; see also Johnson v. Daley, 339 F.2d 582, 586 (7th Cir. 2003)("Although prisoners enjoy a fundamental right of access to the courts . . . there is no right of subsidized access").

3) The plaintiff's "motion for permissive joiner" (d/e 127) is denied. The motion is really one to add new defendants and new claims, a motion to amend the complaint, which the plaintiff has not justified under Fed. R. Civ. P. 15. Additional claims and defendants would serve only to unnecessarily delay this case and unduly burden the existing defendants.

4) The plaintiff's motion to compel an answer to #4 of his third additional request for discovery is granted (d/e 133). It is true that there is no constitutional claim for the intentional destruction of property, but this is part of the plaintiff's retaliation claim. See DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 1999)(citations omitted)(constitutional actions become unconstitutional if done in retaliation for the exercise of a constitutional right-- "This is so even if the adverse action does not independently violate the Constitution."). The court cannot say at this juncture that the procedures regarding property confiscation are irrelevant or unlikely to lead to relevant evidence. The defendants are directed to answer the interrogatory by April 28, 2006.

5) The plaintiff's motion for leave to file his motion to compel is granted (d/e 135).

6) The plaintiff's motion #139 is granted in part and denied in part. It is denied to the extent it seeks a faster ruling on pending motions. It is granted to the extent it seeks extension of the dispositive motion deadline (d/e 139). The new deadline is set forth below.

7) The plaintiff's motion for an extension of dispositive motion deadline is denied as moot (d/e 149).

8) The plaintiff's motion to compel the prison to supply him with adequate paper and legal supplies and materials is denied (d/e 140). The plaintiff says he is provided with 25 sheets of paper, 4 brown envelopes, two pens, and 6 white envelopes each month. It is up to the plaintiff to determine how to best use these resources. That is no different than any other litigant, who must weigh the costs of litigating and the resources one has against the chances of success. The prison is not constitutionally required to subsidize all of the plaintiff's pending cases to the extent the plaintiff believes necessary.

9) The plaintiff's motion for appointment of counsel is denied (d/e 140). The plaintiff's filings show he is a literate, competent and experienced litigator, and this case is not complex. Though it involves many defendants and events, the central claim is retaliation and conditions of confinement which the plaintiff allegedly personally experienced. Additionally, the plaintiff has not made the required showing, nor does the ...


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