United States District Court, C.D. Illinois
LARRY N. TRIBBLE, Plaintiff,
WILKINS, et al., Defendants.
MERIT REVIEW AND CASE MANAGEMENT ORDER
A. BAKER, UNITED STATES DISTRICT JUDGE
plaintiff, proceeding pro se, and currently
incarcerated at Danville Correctional Center, was granted
leave to proceed in forma pauperis. The case is now
before the court for a merit review of 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 “(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.
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 (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 (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.
filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging
his cellmate hit him over the head with a kitchen appliance
following an accusation that plaintiff had stolen his
deodorant. Plaintiff alleges he suffered a laceration that
required stitches. Plaintiff alleges that Defendant Wilkins,
a correctional officer, refused to move plaintiff to a
different cell after plaintiff and his assailant had
requested different living quarters the day before the
incident. Plaintiff alleges Defendant Wilkins told them to
work out the dispute between themselves. Plaintiff alleges
that other inmates offered to allow plaintiff to move into
officials can be held liable for failure to protect an inmate
from harm if the prison official consciously disregards a
known risk of harm. See Farmer v. Brennan, 511 U.S.
825, 837 (1994). Plaintiff states a colorable claim for
failure to protect against Defendant Wilkins. Plaintiff
alleges he mentioned the incident to Lieutenant Gordon, and
Lieutenant said he would look into it. However, plaintiff
makes no allegations that Defendants Gordon, Wilcoxen,
Calloway and Peterson knew there was a risk of harm, and they
IS THEREFORE ORDERED:
Pursuant to its merit review of the Complaint under 28 U.S.C.
§ 1915A, the court finds that the plaintiff states an
Eighth Amendment claim for failure to protect against
Defendant Wilkins. 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
of a motion to compel. Discovery does not begin until defense
counsel has filed an appearance and the court has entered a
scheduling order, which will explain the discovery process in
Counsel for the defendants is hereby granted leave to depose
the plaintiff at his place of confinement. Counsel for the
defendants shall arrange the time for the deposition.
plaintiff shall immediately notify the court, in writing, of
any change in his mailing address and telephone number. The
plaintiff's failure to notify the court of a change in
mailing address or phone ...