United States District Court, C.D. Illinois
CAREY C. PETTIGREW, Plaintiff,
LT. ALLEN, et al., Defendants.
MERIT REVIEW AND CASE MANAGEMENT ORDER
A. BAKER UNITED STATES DISTRICT JUDGE
plaintiff, proceeding pro se, and currently
incarcerated in the Pontiac Correctional Center, was granted
leave to proceed in forma pauperis. The case is now
before the court for a merit review of 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.” 28 U.S.C. § 1915A.
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 (7thCir. 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)(citation omitted). 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.
plaintiff filed this lawsuit pursuant to 42 U.S.C. §
1983 alleging that another inmate assaulted him with feces
from a large bag of same the other inmate had smuggled onto
the prison yard. The plaintiff alleges that prior to the
assault he told prison officials that he needed to be
separated from his assailant because of threats his assailant
had made. The plaintiff alleges that prison officials
nonetheless failed to separate him and that, despite being
strip searched and patted down, prison officials failed to
discover the large bag of feces on his assailant's
person. The plaintiff also alleges that Defendant James, a
correctional counselor, frustrated his attempts to exhaust
his administrative remedies.
plaintiff states an arguable claim for failure to protect
from harm. Farmer v. Brennan, 511 U.S. 825, 834
(1994)(To succeed on a failure to protect claim, a plaintiff
must show (1) “that he is incarcerated under conditions
posing a substantial risk of serious harm, ” and, (2)
prison officials acted with “deliberate
indifference” to that risk.).
searches conducted on the inmates, and other preventative
steps taken, prior to the alleged incident may absolve the
defendants of liability, but that determination should be
made upon a more developed record. See Farmer, 511
U.S. at 844 (no constitutional liability if defendants
“responded reasonably to the risk, even if the harm
ultimately was not averted.”); see also Pettigrew
v. Dalton, No. 13-CV-1319, ECF No. 31 (C.D. Ill., March
2, 2015) (denying motion for summary judgment even though
Pontiac had a strip search policy in place).
Pursuant to its merit review of the Complaint under 28 U.S.C.
§ 1915A, the court finds that the plaintiff states an
Eighth Amendment claim for failure to protect against the
named defendants. 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.
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.
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 have been served, the court will enter an order
setting discovery and dispositive motion deadlines.
respect to a defendant who no longer works at the address
provided by the 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 retained only by the clerk and
shall not be maintained in the public docket nor disclosed by
defendants shall file an answer within 60 days of the date
the waiver is sent by the clerk. A motion to dismiss is not
an answer. The answer should include all defenses appropriate
under the Federal Rules. The answer and subsequent pleadings
shall be to the issues and claims stated in this opinion. In
general, an answer sets forth the defendants' positions.
The court does not rule on the merits of those positions
unless and until a motion is filed by the defendants.
Therefore, no response to the answer is necessary or will be
district uses electronic filing, which means that, after
defense counsel has filed an appearance, defense counsel will
automatically receive electronic notice of any motion or
other paper filed by the plaintiff with the clerk. The
plaintiff does not need to mail to defense counsel copies of
motions and other papers that the plaintiff has filed with
the clerk. However, this does not apply to discovery requests
and responses. Discovery requests and responses are not filed
with the clerk. The plaintiff must mail his discovery
requests and responses directly to defendants' counsel.
Discovery requests or responses sent to the clerk will be
returned unfiled, unless they are attached to and the subject
of a motion to compel. Discovery does not begin until defense
counsel has filed an appearance and the court has entered a
scheduling order, which will explain the discovery process in
Counsel for the defendants is hereby granted leave to depose
the plaintiff at his place of confinement. Counsel for the