United States District Court, C.D. Illinois
MERIT REVIEW AND CASE MANAGEMENT ORDER
A. BAKER UNITED STATES DISTRICT JUDGE
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 “(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.
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). As an initial matter,
plaintiff's motion to amend complaint (#4) is granted,
and the court will review the allegations made therein.
was detained at the Peoria County Jail (“jail”).
Plaintiff alleges that, on January 15, 2018, Defendant
Gilmore, a guard, grabbed his throat, slammed him on the
ground, and placed plaintiff in a chokehold until plaintiff
lost consciousness. Plaintiff also alleges that Defendant
Jones, a sergeant, instructed that plaintiff would
“keep getting choked until [plaintiff] stopped
fighting.” Plaintiff alleges that he received medical
treatment the next day for neck pain and cuts inside his
mouth, and that Defendant Johnson would not speak to him
until plaintiff “came up with a better story.”
Plaintiff states a Fourteenth Amendment claim against
Defendant Gilmore for excessive force given his detainee
status as the time of the incident. See Kingsley v.
Hendrickson, 135 S.Ct. 2466 (2015). Plaintiff also
states a Fourteenth Amendment claim for failure to intervene
against Defendant Jones. See Gill v. City of
Milwaukee, 850 F.3d 335, 342 (7th Cir. 2017).
however, does not state a claim for deliberate indifference
to a serious medical need based upon a one-day delay in
receiving treatment as no plausible inference arises that his
injuries were life-threatening or that they required
emergency medical care. See Jellis v. Hulick, 422
Fed.Appx. 548, 549-50 (7th Cir. 2011). Plaintiff does not
state a claim against Defendant Johnson as there exists no
affirmative duty to investigate or accept plaintiff's
version of events. See Whitlock v. Brueggemann, 682
F.3d 567, 588 (7th Cir. 2012). Finally, plaintiff cannot sue
Defendants Guyton and Turner, the Superintendent and
Assistant Superintendent, respectively, just because they are
in charge. See Ashcroft v. Iqbal, 556 U.S. 662, 676
Plaintiff's Motion to Amend Complaint (#4) is granted.
Clerk is directed to separately docket the motion as an
Pursuant to its merit review of the amended complaint under
28 U.S.C. § 1915A, the court finds that the plaintiff
states a Fourteenth Amendment claim for excessive force
against Defendant Gilmore, and a Fourteenth Amendment claim
against Defendant Jones for the alleged failure to intervene
in the use of excessive force. 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