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Kennedy v. State Tactic Unit

United States District Court, C.D. Illinois

November 14, 2014

RAFAEL KENNEDY, Plaintiff,
v.
STATE TACTIC UNIT, Orange Crush, et al., Defendants.

MERIT REVIEW AND CASE MANAGEMENT ORDER

HAROLD A. BAKER, District Judge.

The plaintiff, proceeding pro se and incarcerated in the Western Illinois Correctional Center, was granted leave to proceed in forma pauperis . The case is now before the court for a merit review of the plaintiff's claims.

The court is required by 28 U.S.C. § 1915A to "screen" the plaintiff's complaint, and through such process to identify and dismiss any legally insufficient claim, or the entire action if warranted. A claim is legally insufficient if it "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."

In reviewing the Complaint, the court accepts the factual allegations as true, liberally construing them in the plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). The court has reviewed the Complaint and has also held a merit review hearing in order to give the plaintiff a chance to personally explain his claims to the court.

The plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging that on April 10, 2014, the Western Illinois Orange Crush Tact Team forcibly extracted him from his cell and beat, kicked, punched and spat on him; pulled down his boxers and threatened him with sexual violence and repeatedly called him a "Nigger." The plaintiff states he "did nothing" to precipitate the arrival of the Orange Crush but that it was a statewide shakedown. The plaintiff was taken to the medical unit and given ice packs for his eyes and wrists but was allegedly denied pain medication on this and a subsequent occasion.

The plaintiff identifies Officers Icenogle, Beswick, Derhake and two John Doe Officers as taking part in the abuse He also claims that an unidentified officer "in the bubble" witnessed the abuse but did not intervene. This individual will be added as John Doe #3. The plaintiff claims deliberate indifference to his serious medical needs by nurses Mills and Moore.

The Orange Crush Tact Team is not a legal entity subject to suit and it will be dismissed. See Powell v. Cook County Jail, 814 F.Supp. 757 (N.D. Ill. March 2, 1993).

The plaintiff alleges only respondeat superior claims as to Godinez, Laws and Goins, and they are dismissed. (The doctrine of respondeat superior [supervisor liability] does not apply to actions filed under 42 U.S.C. § 1983. Pacelli v. DeVito, 972 F.2d 871, 877 (7th Cir. 1992)). Plaintiff also alleges that some of his property was not returned to him. This claim will not go forward as the plaintiff has an adequate state law remedy available to him. (The intentional, unauthorized deprivation of personal property does not amount to a constitutional violation if there is an adequate state post-deprivation remedy available.) Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999), cert. denied, 529 U.S. 1134 (2000). The State of Illinois provides an adequate post-deprivation remedy in the Illinois Court of Claims. See Stewart v. McGinnis, 5 F.3d 1031, 1035-36 (7th Cir. 1993).

The Court concludes that the plaintiff has stated constitutional claims of excessive force, failure to intervene and deliberate indifference to his serious medical needs as outlined below, and the case will be sent for service.

IT IS THEREFORE ORDERED:

1. Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the court finds that the plaintiff states claims of excessive force and failure to intervene against Officers Icenogle, Beswick, Derhake, John Does #1 and #2 and #3; and a claim of deliberate indifference to a serious medical need against defendants Mills and Moore. 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. The administration at the Western Illinois Correctional Center IS instructed to preserve the video(s) of the incident involving plaintiff on April 10, 2014.

3. This case is now in the process of service. The plaintiff is advised to wait until counsel has appeared for the defendants before filing any motions, in order to give the 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. The plaintiff need not submit any evidence to the court at this time, unless otherwise directed by the court.

4. The court will attempt service on the defendants by mailing each defendant a waiver of service. The defendants have 60 days from the date the waiver is sent to file an answer. If the defendants have not filed answers or appeared through counsel within 90 days of the entry of this order, the plaintiff may file a motion requesting the status of service. After the defendants ...


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