United States District Court, C.D. Illinois
MERIT REVIEW OPINION
MYERSCOUGH UNITED STATES DISTRICT JUDGE
proceeds pro se from his incarceration 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. 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
alleges that he has been placed on a “black ball
list” in retaliation for a prior lawsuit and grievances
he has filed. This means that he has been subjected to
various retaliatory acts including the withholding of medical
attention and medicine, excessive force, inhumane conditions
of confinement in the prison yard, and reduced visiting
hours. He may also be alleging that these adverse actions are
racially motivated because Defendants repeatedly call
Plaintiff a racial epithet.
states a plausible First Amendment retaliation claim and a
Fourteenth Amendment equal protection claim. Several of the
alleged adverse actions that form the basis of the
retaliation claim also state independent constitutional
claims: excessive force, failure to intervene to stop
excessive force,  deliberate indifference to serious medical
needs, and inhumane conditions in the prison yard. The Court
cannot rule out Plaintiff's supplemental state law claims
for the intentional infliction of emotional distress and
Plaintiff's allegations that Defendants Simpson and Cox
failed to return or improperly handled Plaintiff's
grievances do not state a claim. Antonelli v.
Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996)(no
constitutional right to prison grievance procedure);
George v. Smith, 507 F.3d 605, 609-10 (7th Cir.
2007) (“Only persons who cause or participate in the
violations are responsible. Ruling against a prisoner on an
administrative complaint does not cause or contribute to the
violation.”). An inmate does not need to access the
grievance procedure in order to access the courts. Similarly,
the failure to properly investigate Plaintiff's
allegations does not state a claim, nor does the failure to
accept Plaintiff's version of events. See Whitlock v.
Brueggemann, 682 F.3d 567, 589 (7th Cir.
2012)("There is no affirmative duty on police to
investigate."); Soderbeck v. Burnett County,
752 F.2d 285, 293 (7th Cir. 1985)(“Failure to take
corrective action cannot in and of itself violate section
1983. Otherwise the action of an inferior officer would
automatically be attributed up the line to his highest
superior . . . .”). Defendant Warden Melvin cannot be
held liable solely because he is in charge. Chavez v.
Illinois State Police, 251 F.3d 612, 651 (7th Cir.
2001)(no respondeat superior liability under § 1983).
IS THEREFORE ORDERED:
Plaintiff's motion to filed an amended complaint is
granted. (d/e 5.) The clerk is directed to separately
docket the amended complaint.
Pursuant to its merit review of the amended complaint under
28 U.S.C. § 1915A, the Court finds that Plaintiff states
the following federal constitutional claims: First Amendment
retaliation; Fourteenth Amendment equal protection; Eighth
Amendment excessive force and failure to intervene to stop
excessive force; Eighth Amendment deliberate indifference to
serious medical needs; and Eighth Amendment inhumane
conditions in the prison yard. Also proceeding are
Plaintiff's supplemental state law claims for the
intentional infliction of emotional distress and
case proceeds solely on the claims identified paragraph 2
above. 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.
Defendants “internal affairs officer, ” Warden
Melvin, Heather Cox, and Simpson are dismissed without
prejudice for failure to state a claim.
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.
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.
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
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 ...