United States District Court, C.D. Illinois, Springfield Division
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, District Judge.
This cause is before the Court for a merit review, pursuant to 28 U.S.C. § 1915A, of Plaintiff Daniel Clark's claims and for consideration of his motion for appointment of counsel.
MERIT REVIEW UNDER 28 U.S.C. § 1915(A)
Under 28 U.S.C. § 1915(e)(2) and § 1915A, the Court is required to carefully screen a complaint filed by a plaintiff who seeks to proceed in forma pauperis. The Court must dismiss a complaint, or a portion thereof, if the plaintiff has raised claims that are legally "frivolous or malicious, " that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. Id.
The test for determining if an action is frivolous or without merit is whether the plaintiff can make a rational argument on the law or facts in support of the claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim for relief if the complaint does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
In reviewing the complaint, the Court accepts the factual allegations as true and liberally construes them in plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Conclusory statements and labels are insufficient. Fed.R.Civ.P. 8; Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (holding that, in order to determine if a complaint states a plausible claim, the court must take non-conclusory, non-speculative facts as true, draw all reasonable inferences in the pleader's favor, and isolate and ignore statements that simply rehash claim elements or offer only legal labels and conclusions). Instead, sufficient facts must be provided to "state a claim for relief that is plausible on its face." Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013)(internal quotation omitted).
Plaintiff Daniel Clark is an inmate within the Illinois Department of Corrections who, at all relevant times, was housed at the Western Illinois Correctional Center. Defendant Correctional Officer Mountain is a correctional officer at the Western Illinois Correctional Center. Clark's Complaint alleges three causes of action against Mountain: (1) excessive force in violation of his Eighth Amendment rights; (2) retaliation in violation of his First Amendment rights; and (3) battery under Illinois common law.
A plaintiff must demonstrate that the force used against him by a state actor in an excessive force claim was not applied in a good faith effort to maintain or restore discipline but was applied maliciously and sadistically to cause harm. Wilkins, 559 U.S. 34, 37 (2010)(quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)).
A plaintiff must demonstrate that (1) he engaged in activity protected by the First Amendment; (2) that he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) that there was a causal connection between the two in order to maintain a claim of retaliation in violation of the plaintiff's First Amendment rights. Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir. 2010).
To state a claim for civil battery under Illinois common law, a plaintiff must allege that the defendant engaged in a willful touching of the plaintiff in order to commit violence on the plaintiff. Flores v. Santiago, 986 N.E.2d 1216, 1219 (Ill.App. Ct. 2013). In other words, a defendant commits battery if: "(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results." Id.
Clark has sufficiently alleged all three of causes of action against Mountain in his Complaint. Clark alleges that on August 10, 2013, Mountain was distributing dinner trays in Clark's cell block. Clark claims that, when Mountain gave him his dinner tray, Mountain began verbally harassing him. Clark did not respond to Mountain's verbal taunts. Nevertheless, Mountain punched Clark through the cell door's chuck hole and hit Clark in his ...