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Barrett v. Hankins

United States District Court, C.D. Illinois

July 17, 2017

DONNIE R. BARRETT, Plaintiff,
v.
JOSEPH P. HANKINS, Defendants.

          MERIT REVIEW ORDER

          HAROLD A. BAKER UNITED STATES DISTRICT JUDGE

         The plaintiff, proceeding pro se and currently civilly detained at the Rushville Treatment and Detention Facility (“Rushville”) is requesting leave to proceed under a reduced payment procedure for indigent plaintiffs who are institutionalized but are not prisoners as defined in 28 U.S.C. Section 1915(h).

         The “privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who, within the District Court's sound discretion, would remain without legal remedy if such privilege were not afforded to them.” Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Circ. 1972). Additionally, a court must dismiss cases proceeding in forma pauperis “at any time” if the action is frivolous, malicious, or fails to state a claim, even if part of the filing fee has been paid. 28 U.S.C. § 1915(d)(2). Accordingly, this court grants leave to proceed in forma pauperis only if the complaint states a federal action.

         This case is 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 A(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.

         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 (7thCir. 2013). However, conclusory statements and labels are insufficient. Enough facts must be provided to Astate 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 alleges that he was assigned to share a room with another resident with a known propensity for sexual assault against other residents because TDF staff could not “get [Plaintiff] criminally charged for aggravated [assault].” Plaintiff also alleges that TDF staff retaliated against him because (1) he has never been in a fight at the facility; (2) he is no longer legally represented by the security director's brother; and, (3) he “documented all events that took place against [him] by a known sexual predator.” Plaintiff alleges he was taken to administrative segregation for hitting his new roommate after the roommate had exposed his genitals and touched Plaintiff's penis.

         Plaintiff's rights arise under the Fourteenth Amendment's due process clause rather than the Eighth Amendment. Burton v. Downey, 805 F.3d 776, 784 (7th Cir. 2015). The standards under the respective amendments are essentially the same. Id. Liberally construed, Plaintiff states a failure-to-protect claim based on the allegations that TDF officials knew that the roommate posed a significant risk to Plaintiff's safety but forced them to share a room anyway. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Plaintiff, however, does not state a plausible retaliation claim. Plaintiff fails to identify a protected First Amendment or other constitutional right in which he engaged that predicated the retaliation.

         IT IS THEREFORE ORDERED that:

         1. Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the court finds that the plaintiff states Fourteenth Amendment claims for failure to protect against Defendants Hankins, Lodge, and Logsdon. 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. 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.

         3. 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 have been served, the court will enter an order setting discovery and dispositive motion deadlines.

         4. With 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 the clerk.

         5. The 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 considered.

         6. This 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 ...


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