The opinion of the court was delivered by: Reagan, District Judge
Plaintiff Shauntez Hairston is a pre-trial detainee currently being held at the St. Clair County Jail (SCCJ). On July 28, 2009, Plaintiff filed a complaint in the Circuit Court for St. Clair County, Illinois. It is unclear whether Plaintiff paid the required filing fee to the state court or was allowed to proceed in forma pauperis by the state court. Regardless, Defendant Annette Tim was served with process on July 30, 2009. Defendant Tim, by and through her attorneys, filed a Notice of Removal pursuant to 28 U.S.C. § 1446(a) with this Court on August 7, 2009. Removal to this Court was based on the civil rights claims (presumably arising under 42 U.S.C. § 1983) asserted in the original complaint. On August 10, 2009, Plaintiff filed his first amended complaint (Doc. 3). This amended complaint supersedes and replaces the original complaint. See Flannery v. Recording Indus. Assoc. Of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004).*fn1 To date, Defendant Tim appears to be the only defendant to have been served with process.
According to the first amended complaint, Defendant Tim is a "correctional officer" at SCCJ. Therefore, Defendant Tim appears to be an employee of a governmental entity. The complaint alleges - among other things - that Defendant Tim attacked Plaintiff while Plaintiff was confined at SCCJ and that such attack was a violation of Plaintiff's civil rights and a created liability under state tort law. Additionally, Plaintiff contends that Defendant Tim denied him adequate medical care for the injuries he sustained. As such, several provisions of the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, apply to this case.
First, Plaintiff is required to exhaust "such administrative remedies as are available" before commencing any action "with respect to prison conditions under section 1983 of this title, or any other Federal law." 42 U.S.C. § 1997e(a). Plaintiff's claim that Defendant Tim used excessive force against him, that Tim the force was in retaliation for a lawsuit had filed against another guard, and that Tim denied him adequate medical care in violation of the Eighth Amendment are "prison condition" claims to which § 1997e(a)'s exhaustion requirement applies. See Porter v. Nussle, 534 U.S. 516, 519 (2002). Failure to exhaust administrative remedies is usually an affirmative defense. The Court can sua sponte find that the complaint fails to state a claim only if it is clear from the face of the complaint that Plaintiff has not exhausted his available remedies. Jones v. Bock, 549 U.S. 199, 214-215 (2007).
Second, because Plaintiff has had three or more prior prisoner actions dismissed (or partially dismissed) on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted,*fn2 Plaintiff is prohibited from proceeding in forma pauperis in this Court unless he is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). A prisoner who cannot proceed in forma pauperis must prepay all fees,*fn3 28 U.S.C. § 1915(a)(1), and the counsel appointment provisions set forth in 28 U.S.C. 1915(e)(1) do not apply. Additionally, a prisoner who cannot proceed in forma pauperis is responsible for serving process under Rule 4 of the Federal Rules of Civil Procedure.*fn4
Third, prisoner complaints "seeking redress from a governmental entity or officer or employee of a governmental" are subject to a sua sponte review by the Court pursuant to 28 U.S.C. § 1915A. Specifically, § 1915A provides:
(a) Screening.-- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--
(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 590 U.S. 544, 570 (2007). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Although the Court is obligated to accept factual allegations as true, some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816, 821 (7th Cir. 2009).
In the usual case, this preliminary review of a prisoner case occurs before a defendant is served with the complaint. This prevents defendants from being burdened with being served with process and responding to meritless actions. If the complaint survives review under § 1915A, the Court can direct the US Marshal to serve the complaint (if the prisoner is proceeding in forma pauperis), direct that defendants respond the complaint,*fn5 and refer pretrial matters to a United States Magistrate Judge for a more orderly disposition. Where, as here, the case has been filed in state court and removed by a defendant to federal court, the cart frequently gets far ahead of the horse.
Specifically, when a prisoner case is removed from state court to federal court at least one defendant has already been served with the complaint and, often, has filed a response or motion concerning it. In such a case, defendants may be responding to claims that would not survive the Court's review under § 1915A. Conversely, pro se prisoner complaints are to be liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), and a defendant may miss a claim that the Court identifies in the § 1915A review process. The problem, as evidenced by this case, is that the litigants then embark on discovery based on a less than complete understanding of the claims.
It is with an eye towards getting the horse back in front of the cart that the Court now undertakes the preliminary review of the first amended complaint under 28 U.S.C. § 1915A and consideration of Plaintiff's various pending motions.
THE FIRST AMENDED COMPLAINT
Plaintiff alleges that he was attacked and beaten on three separate occasions on June 30, 2009, while he was confined at SCCJ. The first attack was allegedly carried out by Defendants Tim and Xavier Blackburn. Plaintiff contends that this attack was motivated, at least in part, by a lawsuit Plaintiff had filed against "Officer Milton."*fn6 Plaintiff asserts that Tim kicked him and that Blackburn slammed him to the ground and punched him. Plaintiff contends that this attack caused swelling on the back of his head and pain to his head, neck, and back.*fn7 Plaintiff further alleges that Defendant Tim denied him adequate medical care for the injuries he suffered as a result of this beating.
After the first attack, it appears that Plaintiff complained to Defendants Phil McLaurin and Matthew Scott. Plaintiff states, however, that these Defendants failed to listen to his complaint.
The second attack, carried out by Defendants Andrew Blankey and Sean McPeak, allegedly occurred 90 to 100 minutes after the first attack. Plaintiff claims that Blankey punched him in the torso and tried to snap Plaintiff's neck. Plaintiff asserts that McPeak took him to the ground while Blankey was carrying out his attack. Plaintiff contends that Defendants Rodney Wilson, Kenneth Clayton, and Collins witnessed the attack and failed to intervene to stop it.
After the second attack, Plaintiff was placed in a disciplinary segregation cell that he asserts was "dirty and unsanitary and without a mattress." Defendant Blackburn allegedly informed Plaintiff that Plaintiff would not "get anything until he [Blackburn] was ready to get it to Plaintiff." After an hour, Plaintiff was escorted to his original cell by Defendant McPeak to get his property. The third attack occurred while Plaintiff was entering and exiting his cell. Specifically, Plaintiff claims that McPeak slammed him into the toilet causing Plaintiff pain and contusions. Plaintiff further asserts that McPeak choked him, verbally harassed him, and slammed him to the ground.
Plaintiff also alleges that Defendant Tim intercepted his mail and threatened to have Plaintiff's mother killed if Plaintiff reported the attack(s).
Plaintiff claims that "the acts and omissions of each of the named defendants deprived him of his rights, privileges, and immunities secured by the Constitution and laws of the United States."
Based on the allegations of the complaint, the Court finds it convenient to divide Plaintiff's pro se action into twelve counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit.
COUNT 1: A claim under 42 U.S.C. § 1983 against Defendants Tim and Blackburn for using excessive force (i.e., the first attack) against Plaintiff in violation of Plaintiff's right to Due Process of Law;
COUNT 2: A claim under 42 U.S.C. § 1983 against Defendants Tim and Blackburn for retaliating against Plaintiff for filing a lawsuit against "Officer Milton," the retaliation consisting of the use of force on Plaintiff, in violation of Plaintiff's rights under the First Amendment;
COUNT 3: A claim under 42 U.S.C. § 1983 against Defendant Tim for depriving Plaintiff of adequate medical care for his injuries in violation of Plaintiff's right to Due Process of Law;
COUNT 4: A claim under 42 U.S.C. § 1983 against Defendants McLaurin and Scott for failing to protect Plaintiff in violation of Plaintiff's right to Due Process of Law;
COUNT 5: A claim under 42 U.S.C. § 1983 against Defendants Blankey and McPeak for using excessive force (i.e., the second attack) against Plaintiff in violation of Plaintiff's right to Due Process of Law;
COUNT 6: A claim under 42 U.S.C. § 1983 against Defendants Wilson, Clayton, and Collins for failing to protect Plaintiff in violation of Plaintiff's right to Due Process of Law;
COUNT 7: A claim under 42 U.S.C. § 1983 against Defendant McPeak for using excessive force (i.e., the third attack) against Plaintiff in violation of Plaintiff's right to Due Process of Law;
COUNT 8: A state law claim for assault and/or battery against Defendants Tim and Blackburn based on the first attack;
COUNT 9: A state law claim for assault and/or battery against Defendants Blankey and McPeak based on the second attack;
COUNT 10: A state law claim for assault and/or battery against Defendant McPeak based on the third attack;
COUNT 11: A claim under 42 U.S.C. § 1983 against Defendant Blackburn for subjecting Plaintiff to unconstitutional conditions of confinement (i.e., the conditions of disciplinary segregation) in violation of Plaintiff's right to Due Process of Law;
COUNT 12: A claim under 42 U.S.C. § 1983 against Defendant Tim for "intercepting" Plaintiff's mail and threatening Plaintiff's mother in violation of ...