United States District Court, C.D. Illinois
DONNIE R. BARRETT, Plaintiff,
JOSEPH P. HANKINS, Defendants.
MERIT REVIEW ORDER
A. BAKER UNITED STATES DISTRICT JUDGE
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).
“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.
case is before the court for a merit review of the
plaintiff's claims. The court is required by 28 U.S.C.
Â§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. Â§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 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.
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.
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.
IS THEREFORE ORDERED that:
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.
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