United States District Court, C.D. Illinois
MERIT REVIEW OPINION
MYERSCOUGH, U.S. DISTRICT JUDGE.
proceeds pro se from his incarceration in a federal prison in
Phoenix, Arizona. His Complaint, which concerns incidents in
a federal prison in Pekin, Illinois, 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 (7th Cir. 2013)(quoted cite
alleges that after he arrived at the Pekin Federal
Correctional Institution, Defendants arranged for or enabled
other prisoners to steal Plaintiff's property and to sell
that property to other prisoners in the Institution.
Plaintiff seems to allege that Defendants did this in
retaliation for another lawsuit filed by Plaintiff in Texas
which remains pending. Nunez v. Jones, et al.,
16-cv-00034 (E.D. Tex.). Plaintiff also alleges that one of
the Defendants took a cut of the money from the sale of
Plaintiff's stolen property.
arguably states a due process claim based on the intentional
deprivation of his property. The claim may not be viable if
Plaintiff had other post-deprivation remedies available to
him, Hudson v. Palmer, 468 U.S. 517, 533 (1984), but
that cannot be determined on the present record. As for his
retaliation claim, Plaintiff does not explain the basis for
his belief that Defendants, who work at the federal prison in
Illinois, would harbor retaliatory motive for a lawsuit filed
in Texas against different Defendants about an incident that
occurred in 2012. For now, though, both claims will remain in
the case, subject to a motion to dismiss.
IS THEREFORE ORDERED:
1) Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states a
retaliation claim and a due process claim based on the
alleged intentional deprivation of his property. 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
2) 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.
3) 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.
4) 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.
5) Defendants shall file a responsive pleading within 60 days
of the date the waiver is sent by the Clerk.
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 Plaintiff with the Clerk.
Plaintiff does not need to mail to Defense counsel copies of
motions and other papers that 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. 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
7) Counsel for Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendants
shall arrange the time for the deposition.
8) Plaintiff shall immediately notify the Court, in writing,
of any change in his mailing address and telephone number.
Plaintiff's failure to notify the Court of a change in
mailing address or phone number will result in dismissal of
this lawsuit, with prejudice.
9) If a Defendants fails to sign and return a waiver of
service to the clerk within 30 days after the waiver is sent,
the Court will take appropriate steps to effect formal
service through the U.S. Marshal's service on that
Defendant and will require that Defendant to pay the full