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Kaszuba v. Tangman

United States District Court, C.D. Illinois

October 9, 2014

JOSHUA KASZUBA, Plaintiff,
v.
CORRECTIONAL OFFICER TANGMAN, et.al., Defendants.

MERIT REVIEW OPINION

SUE E. MYERSCOUGH, District Judge.

The case is before the Court for a merit review pursuant to 28 U.S.C. ยง 1915A. In reviewing the Complaint, the Court accepts the factual allegations as true, liberally construing them in Plaintiff's favor. Turley v. Rednour , 729 F.3d 645, 649 (7th Cir. 2013). However, conclusory statements and labels are insufficient. Enough facts must be provided to "state a claim for relief that is plausible on its face.'" Alexander v. U.S. , 721 F.3d 418, 422 (7th Cir. 2013)(quoted cite omitted).

ALLEGATIONS

The Plaintiff, a pro se prisoner, alleges his constitutional rights were violated at Pontiac Correctional Center by eight Defendants including Correctional Officers Tangman, Smith, Liels, Mans, Frazier, Henderson, and two John Doe Defendants. The Plaintiff alleges the two John Doe Officers handcuffed the Plaintiff behind his back on February 15, 2013. Correctional Officers Tangman and Mans then entered his cell, pulled his hands into the air, and began striking him repeatedly in the back, ribs, and hip. The Plaintiff says he lost feeling in his right hand and suffered bruises and pain due to the beating. The Plaintiff received medical care after the incident including x-rays of his rib and shoulder.

The Plaintiff says Defendants Smith, Liels, Frazier, Henderson, and two John Doe officers stood at his cell door while the beating was taking place and failed to intervene to stop the assault.

ANALYSIS

The Plaintiff has alleged Defendants Tangman and Mans violated his Eighth Amendment rights when they used excessive force against him on February 15, 2013. See Hudson v. McMillian , 503 U.S. 1, 5 (1992). The Plaintiff has also alleged Defendants Smith, Liels, Frazier, Henderson, and two John Doe officers violated his Eighth Amendment rights when they failed to intervene to stop the assault. See Miller v Smith, 220 F.3d 491, 495 (7th Cir. 2000).

MOTION FOR APPOINTMENT OF COUNSEL

Plaintiff has filed a motion for the appointment of pro bono counsel.[3] In considering the Plaintiff's motion, the court must ask two questions: "(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself?" Pruitt v. Mote , 503 F.3d 647, 654 (7th Cir. 2007), citing Farmer v. Haas , 990 F.2d 319, 322 (7th Cir. 1993). In this case, the Plaintiff has not demonstrated he made a reasonable attempt to find counsel on his own. Although the Plaintiff states he has tried to contact several attorneys, he has not provided a list of any specific attorneys nor has he provided a copy of any letters sent or received. Therefore, the motion is denied with leave to renew.[3]

IT IS THEREFORE ORDERED:

1) Pursuant to its merit review of the Complaint under 28 U.S.C. ยง 1915A, the Court finds that Plaintiff states the following claims: a) Defendants Tangman and Mans violated his Eighth Amendment rights when they used excessive force against him on February 15, 2013; and b) Defendants Smith, Liels, Frazier, Henderson and two John Doe officers violated his Eighth Amendment rights when they failed to intervene to stop the assault. The claims are stated against the Defendants in their individual capacities only. This case proceeds solely on the claims identified in this paragraph. 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 the date the waiver is sent 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 ...


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