United States District Court, C.D. Illinois
MERIT REVIEW OPINION
MYERSCOUGH UNITED STATES DISTRICT JUDGE
proceeds pro se from his detention in the Sangamon County
Jail. His Complaint is before the Court for a merit review
pursuant to 28 U.S.C. § 1915A. This section requires the
Court to identify cognizable claims stated by the Complaint
or dismiss claims that are not cognizable. In reviewing the
complaint, the Court accepts the factual allegations as true,
liberally construing them in Plaintiff's favor and taking
Plaintiff's pro se status into account. 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
(7thCir. 2013)(quoted cite omitted).
alleges that, on February 24, 2017, he went to the control
room to ask Mrs. Thompson for a grievance form in order to
complain about H pod not having access to the commissary the
day before, while all the other pods were allowed to go.
Plaintiff believes that the H pod is discriminated against
because the H pod houses “LGBT” detainees and
detainees charged with sex offenses.
of giving Plaintiff a grievance form, Mrs. Thompson went to
get Sergeant Carey. Sergeant Carey then approached Plaintiff,
hurled a barrage of offensive comments at Plaintiff, and then
took Plaintiff out of camera range and assaulted Plaintiff,
causing Plaintiff injuries, including broken teeth. In
addition to the offensive comments, Sergeant Carey allegedly
told Plaintiff that Plaintiff got what he deserved for filing
allegations state a plausible excessive force, harassment,
and retaliation claims against Sergeant Carey. The Court is
aware that “simple” verbal harassment does not
rise to the level of a constitutional violation, but
Plaintiff's allegations arguably allow the inference that
the harassment was severe enough to amount to punishment
under the due process clause. See, e.g., Beal v.
Foster, 803 F.3d 356 (7th Cir.
2015)(acknowledging that “most verbal harassment . . .
does not rise to the level of cruel and unusual
punishment” but reversing for further development where
inmate alleged pervasive verbal sexual harassment which
arguably put inmate at risk of harm from other inmates);
Hughes v. Scott, 816 F.3d 955 (7th Cir.
2016)(civil detainee's allegations of being called
ignorant, stupid, and a moron and warning that detainee's
life would be better if he did not file grievances could
arise to more than simple verbal harassment); DeWalt v.
Carter, 224 F.3d 607, 612 (7th Cir.
2000)(“Standing alone, simple verbal harassment does
not constitute cruel and unusual punishment, deprive a
prisoner of a protected liberty interest or deny a prisoner
equal protection of the laws.”)
no claim is stated on these allegations against the Sheriff
or the Jail superintendents. These individuals cannot be held
liable for the constitutional violations of their employees
just because they are in charge. No plausible inference
arises that the Sheriff or Jail supervisors participated in,
directed, or approved of Defendant Carey's behavior.
See George v. Smith, 507 F.3d 605, 609-10 (7th Cir.
2007) (“Only persons who cause or participate in the
violations are responsible. Ruling against a prisoner on an
administrative complaint does not cause or contribute to the
violation.”); Soderbeck v. Burnett County, 752
F.2d 285, 293 (7th Cir. 1985)(“Failure to take
corrective action cannot in and of itself violate section
1983. Otherwise the action of an inferior officer would
automatically be attributed up the line to his highest
superior . . . .”). They will be dismissed without
prejudice to amendment.
IS THEREFORE ORDERED:
Based on the other cases pending in the Central District, the
Court believes that Defendant “Carry” should be
“Brian Carey.” If the Court is incorrect, then by
April 14, 2017, Plaintiff should file a motion to correct
stating the first and last name of this defendant.
Defendants Barr, Beck, Durr, and Strayer are dismissed,
without prejudice, for failure to state a claim against them.
Pursuant to its merit review of the Complaint under 28 U.S.C.
§ 1915A, the Court finds that Plaintiff states
constitutional claims against Defendant Carey for excessive
force, harassment, and retaliation claims. 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
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.
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.
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 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 Defendants' positions. The
Court does not rule on the merits of those positions ...