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Titus v. Kint

United States District Court, C.D. Illinois

July 12, 2017

ADAM TITUS, Plaintiff,
v.
CORRECTIONAL OFFICER KINT, et al., Defendants.

          MERIT REVIEW OPINION

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE.

         Plaintiff proceeds pro se from his incarceration in Menard Correctional Center regarding an incident which occurred in Pontiac Correctional Center. 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.[1] 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).

         Plaintiff alleges that on January 4, 2017, Defendant Kint, a correctional officer at Pontiac Correctional Center, applied handcuffs too tightly and then punched Plaintiff in the back while escorting Plaintiff down the stairs, causing Plaintiff to fall and sustain painful injuries. Defendant Shawny, a nurse, and other unidentified defendants, did not provide adequate medical care for Plaintiff's injuries. Plaintiff was allegedly left restrained on a bench for over seven hours, which resulted in Plaintiff urinating and defecating on himself. The next day Defendant Maury denied Plaintiff's request for pain medication.

         Plaintiff states an Eighth Amendment excessive force claim against Defendant Kint and a claim against Defendants Shawny and Maury. Plaintiff also names as Defendants the following:

         Wexford Health Sources, Inc., Officer Boland, Officer Gresham, and Officer Baptist. However, the Court cannot tell how these Defendants were personally involved in the excessive force or denial of medical care. Additionally, the Court cannot tell which Defendants, if any, were involved in Plaintiff's seven-hour restraint.

         At this point, the case will proceed on an excessive force claim against Defendant Kint and a claim against Defendants Shawny and Maury for deliberate indifference to Plaintiff's serious medical needs.

         The Court notes that Plaintiff's attachments suggest that Plaintiff did not exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a). The attachments appear to show that Plaintiff did not file his grievance until April 2017, which is more than 60 days after the incident. 20 Ill.Admin.Code 504.810 (grievance must be filed within 60 days after incident). That determination, however, is premature.

         IT IS THEREFORE ORDERED:

         1) Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states the following Eighth Amendment claims: an excessive force claim against Defendant Kint and a claim against Defendants Shawny and Maury for deliberate indifference to Plaintiff's serious medical needs. 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) Defendants Baptist, Wexford Health Sources, Boland, and Gresham are dismissed without prejudice for failure to state a claim against them.

         3) 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.

         4) 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.

         5) 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 retained only by the Clerk and shall not be maintained in the public docket nor disclosed by the Clerk.

         6) 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 ...


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