United States District Court, N.D. Illinois
Frederick J. Kapala Judge
application for leave to proceed in forma pauperis
 is granted. However, although Plaintiff has not
officially notified the Court of any change of address,
recent mail sent to Plaintiff at the address he provided has
been returned as undeliverable. As Plaintiff's location
is unclear, if Plaintiff is currently incarcerated, the Court
orders the trust fund officer at Plaintiff's place of
incarceration to deduct $49.37 from Plaintiff's account
for payment to the Clerk of Court as an initial partial
payment of the filing fee, and to continue making monthly
deductions in accordance with this order. The Clerk of Court
is directed to send a copy of this order to the Supervisor of
the Inmate Trust Fund Accounts at the Winnebago County Jail.
The Court further directs the Clerk of Court to: (1) file
Plaintiff's complaint ; (2) issue summonses for
service on Defendants Egerere, Moore, Schabacker, Cox, and
Davis by the U.S. Marshal; and (3) send Plaintiff five blank
USM-285 service forms, a magistrate judge consent form,
filing instructions, and a copy of this order, to
Plaintiff's address of record, and to Plaintiff, C/O Ms.
Louie Stewart, 315 S. Independence, Rockford, IL 61103. [See
Dkt. 3, at 1]. The Court advises Plaintiff that a completed
USM-285 (service) form is required for each named Defendant.
The U.S. Marshal will not attempt service on a Defendant
unless and until the required form for that Defendant is
received. The U.S. Marshal is appointed to serve Defendants
Egerere, Moore, Schabacker, Cox, and Davis. If Plaintiff is
no longer incarcerated, he must promptly (within fourteen
days of the date of this order) notify the Court in writing
of his new address and complete and submit a new application
for leave to proceed in forma pauperis, which includes
up-to-date information regarding his resources.
Ronny Earl Rigsby, then a detainee in Winnebago County Jail
(WCJ) who may since have been released, brings this pro se
civil rights action, pursuant to 42 U.S.C. § 1983,
regarding jail correctional officers' alleged use of
force against him in 2015, while he previously was serving a
30-day sentence for retail theft in the WCJ. Specifically,
Plaintiff alleges that, on September 11, 2015, Defendant C/O
Egerere ordered him to lock down, Dkt. 1, at 5, 6. C/O
Egerere repeated the lockdown order, screaming it with
profanity. Plaintiff refused the order and told Egerere to
“call [his] backup crew.” As backup arrived,
Defendant Sergeant Moore began handcuffing Plaintiff.
Id. at 6-7. Plaintiff did not resist, but Egerere
then grabbed Plaintiff's neck and “slammed
[Plaintiff's] body forward and slammed [the] right hand
side of [his] face to the concrete  floor” twice.
Id. at 7. Egerere “then stepped around Sgt.
Moore a little and . . . proceed to stump [Plaintiff] in
[his] back with his right knee ‘one-time severely
hard.'” Id. Defendants Moore, C/O
Schabacker, C/O T. Cox, and C/O Davis, among others, helped
Plaintiff up and took him to the medical unit for treatment.
Id. at 7-8. Egerere later told Plaintiff that he did
not know Plaintiff only had one leg, and it had just been
“one-of-them-days” in which he was stressed from
overseeing two jail “pods.” Id. at 8-9.
Plaintiff seeks monetary damages for Egerere's uses of
force and emotional anguish, as well as for Egerere's
employment to be terminated. Currently before the Court are
Plaintiff's application to proceed in forma
pauperis and his complaint for initial review under 28
U.S.C. § 1915A.
Court first addresses the filing fee for this case.
Plaintiff's application for leave to proceed in forma
pauperis establishes that Plaintiff cannot prepay the
filing fee and is granted. Pursuant to 28 U.S.C. §
1915(b)(1), (2), the Court orders: (1) Plaintiff to
immediately pay (and the facility having custody of him to
automatically remit) $49.37 to the Clerk of Court for payment
of the initial partial filing fee; and (2) Plaintiff to pay
(and the facility having custody of him to automatically
remit) to the Clerk of Court twenty percent of the money he
receives for each calendar month during which he receives
$10.00 or more, until the $350 filing fee is paid in full.
The Court directs the Clerk of Court to ensure that a copy of
this order is mailed to each facility where Plaintiff is
housed until the filing fee has been paid in full. All
payments shall be sent to the Clerk of Court, United States
District Court, 219 South Dearborn Street, Chicago, Illinois
60604, attn: Cashier's Desk, 20th Floor, and shall
clearly identify Plaintiff's name and the case number
assigned to this case.
Plaintiff is no longer incarcerated, he must promptly notify
the Court in writing of his new address and also complete and
submit a new application for leave to proceed in forma
pauperis that provides up-to-date information regarding
his resources. The Court notes that Plaintiff was a prisoner,
for the purposes of the Prison Litigation Reform Act, when he
brought this action, and he accordingly remains responsible
for payment of the full statutory filing fee. 28 U.S.C.
Court next turns to a review of Plaintiff's complaint.
Under 28 U.S.C. §§ 1915(e)(2) and 1915A(a), the
Court is required to screen pro se prisoners' complaints
and dismiss the complaint, or any claims therein, if the
Court determines that the complaint or claim is frivolous or
malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. See Jones v. Bock, 549 U.S.
199, 214 (2007); Turley v. Rednour, 729 F.3d 645,
649 (7th Cir. 2013).
screen prisoner litigation claims in the same manner as
ordinary Federal Rule of Civil Procedure 12(b)(6) motions to
dismiss. See Maddox v. Love, 655 F.3d 709, 718 (7th
Cir. 2011). A motion under Rule 12(b)(6) challenges the
sufficiency of the complaint. See Hallinan v. Fraternal
Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820
(7th Cir. 2009). Under Rule 8(a)(2), a complaint must include
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). The short and plain statement under Rule 8(a)(2)
must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). Under the federal notice pleading
standards, a plaintiff's “[f]actual allegations
must be enough to raise a right to relief above the
speculative level.” Id. Put differently, a
“complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570).
complaint, “liberally construed,  and drawing all
reasonable inferences in his favor, ” see Perez v.
Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015) (citations
omitted), contains facts sufficient to state federal claims
against Defendants Egerere, Moore, Schabacker, Cox, and
Davis. The Court discerns the following federal claims.
First, accepting Plaintiff's factual allegations as true,
the Court finds that the complaint states a colorable federal
cause of action as to Defendant Egerere's use of force in
slamming Plaintiff's face to the concrete floor and
kneeing him in the back while he lay there. See Wilkins
v. Gaddy, 559 U.S. 34, 38-40 (2010) (explaining that
intentional use of excessive force by prison guards against
inmate without penological justification constitutes cruel
and unusual punishment).
taking Plaintiff's factual allegations as true, although
it is a closer call, the complaint also states a claim as to
the remaining Defendants' failure to protect Plaintiff
from Egerere's use of force. The Eighth Amendment
protects pretrial detainees from deliberate indifference to
their safety and welfare; jail officials may violate this by
failing to take appropriate steps to protect inmates from
known substantial risks to their safety. Fillmore v.
Page, 358 F.3d 496, 506 (7th Cir. 2004) (emphasizing
“the long-established rule that “[a]n official
satisfies the personal responsibility requirement of §
1983 if she acts or fails to act with a deliberate
or reckless disregard of the plaintiff's constitutional
rights”) (citation omitted). Under this rule, a state
actor who has “reason to know” that
“excessive force was being used” or that a
“constitutional violation has been committed” and
also has “a realistic opportunity to intervene to
prevent the harm from occurring” may violate a
person's rights by failing to act reasonably to prevent
that harm. Chavez v. Ill. State Police, 251 F.3d
612, 652 (7th Cir. 2001); see also Lewis v. Downey,
581 F.3d 467, 472 (7th Cir. 2009) (“Even as a
bystander, however, [a jail official] can be held liable
under § 1983 if [plaintiff] can show that [he] (1) had
reason to know that a fellow officer was using excessive
force or committing a constitutional violation, and (2) had a
realistic opportunity to intervene to prevent the act from
occurring.) (citing Chavez, 251 F.3d at 652;
Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir.
all Defendants must respond to the complaint. Nothing in this
order, which is based on preliminary review of the complaint,
precludes any legal argument that Defendants may advance in
response to Plaintiff's allegations.
Court directs the Clerk to issue summonses for service of the
complaint on Defendants Egerere, Moore, Schabacker, Cox, and
Davis. The Clerk of Court is directed to mail Plaintiff five
blank USM-285 (U.S. Marshals service) forms. The Court
advises Plaintiff that a completed USM-285 form is required
for each named Defendant for whom summons has issued. The
U.S. Marshal will not attempt service on a Defendant unless
and until the required form for that Defendant is received.
Plaintiff must therefore complete and return a service form
for each named Defendant, and failure to do so may result in
the dismissal of the unserved Defendant, as well as dismissal
of this case in its entirety for lack of prosecution.
Court appoints the U.S. Marshals Service to serve Defendants
Egerere, Moore, Schabacker, Cox, and Davis. The Court directs
the U.S. Marshal to make all reasonable efforts to serve
Defendants. With respect to any former employee of the
Winnebago County Jail who can no longer be found at the work
address provided by Plaintiff, officials there must furnish
the U.S. Marshal with the Defendant's last-known address.
The U.S. Marshal will use the information only for purposes
of effectuating service or to show proof of service, and any
documentation of the address shall be retained only by the
U.S. Marshal. Address information will not be maintained in
the Court file nor disclosed by the U.S. Marshal, except as
necessary to serve Defendants. The U.S. Marshal is authorized
to send a request for waiver of service to Defendants in the
manner prescribed by Federal Rule of Civil Procedure 4(d)
before attempting personal service.
Court finally addresses Plaintiffs letter dated November 16,
2016, in which he raises issues related to his more recent
2016 incarceration at WCJ. In particular, he attacks the
underlying reasons for his confinement. These incidents are
not raised in the complaint, and, given the passage of time
between the incident raised in the complaint and current
events, which apparently involve different personnel, the
Court does not understand them to be claims related to those
in the complaint. If, after conducting some legal research,
Plaintiff believes his allegations support a federal claim,
he should bring that as a separate lawsuit, subject to the
fee requirements of the Prisoner Litigation Reform Act, as
set forth above. See George v. Smith,507 F.3d 605,
607 (7th Cir. 2007) (“Unrelated claims against
different defendants belong in different suits, not only to
prevent the sort of morass that this 50-claim, 24-defendant
suit produced but also to ensure that prisoners pay the
required filing fees-for the ...