United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
HERNDON, District Judge:
David Robert Bentz, an inmate in Menard Correctional Center,
brings this action for deprivations of his constitutional
rights pursuant to 42 U.S.C. § 1983. This case is now
before the Court for a preliminary review of the Complaint
pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening - The court shall review,
before docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for Dismissal - On review, the
court shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim on
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
action or claim is frivolous if “it lacks an arguable
basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Frivolousness is an
objective standard that refers to a claim that any reasonable
person would find meritless. Lee v. Clinton, 209
F.3d 1025, 1026-27 (7th Cir. 2000). An action fails to state
a claim upon which relief can be granted if it does not plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim of
entitlement to relief must cross “the line between
possibility and plausibility.” Id. at 557. At
this juncture, the factual allegations of the pro se
complaint are to be liberally construed. See Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.
careful review of the Complaint and any supporting exhibits,
the Court finds it appropriate to exercise its authority
under § 1915A; this action is subject to summary
originally brought suit on July 27, 2016 in No. 16-cv-854-NJR
(16-854). That case was dismissed for failure to comply with
the Court's orders and for attempting to commit fraud on
the Court on September 22, 2016. (16-854, Doc. 8). The
Seventh Circuit reversed on appeal, and No. 16-854 was
reopened on January 4, 2018, at which time the claims present
in this lawsuit were severed into this action. (16-854, Doc.
36). Specifically, Judge Rosenstengel designated Counts 13
and 14 for this action. (Doc. 1) which was designated as
18-16 by the clerk's office as its unique file number.
alleges the following relevant facts: on August 29, 2014,
Plaintiff had a call pass to see Dr. Trost. (Doc. 2, p. 15).
While waiting, Plaintiff was assaulted by Defendant
Lindenberg and Virgil Smith in the hall outside of Dr.
Trost's waiting room. Id. Plaintiff has filed a
prior separate lawsuit regarding these allegations that is
currently pending before this Court: 15-cv-121-NJR-DGW
(15-121). Id. There are no further details about
Plaintiff's interaction with Defendant Lindenberg in this
No. 15-121 remains pending. Count 2 of that action
specifically alleges that “Defendant Lindenberg . . .
used excessive force against Plaintiff on August 29, 2014 . .
. in violation of the Eighth Amendment.” (15-121, Doc.
8, p. 5). There is also a claim for the same conduct
proceeding under Illinois state law. (15-121, Doc. 8, p. 6).
severance order that opened the underlying case designated 2
claims for this action:
Count 13 - Eighth Amendment excessive force
claim against Lindenberg for assaulting Plaintiff on August
29, 2014 (“Count ...