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Owens v. Johnson

United States District Court, C.D. Illinois

May 14, 2018

ABRIECE OWENS, Plaintiff,
v.
BRIAN JOHNSON, et al. Defendants.

          MERIT REVIEW ORDER

          HAROLD A. BAKER UNITED STATES DISTRICT JUDGE.

         This 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. § 1915A.

         In 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).

         Plaintiff is currently detained in the Peoria County Jail. Plaintiff alleges that Defendant Johnson, a correctional officer, sprayed him with chemical spray and directed Defendants McCarter and Reneau to “cuff [Plaintiff's] bitch ass up.” Plaintiff alleges that Defendant Johnson then choked him and slammed his head against the wall while Defendants McCarter and Reneau held his arms. Plaintiff alleges that a nurse later told him to sign up for sick call when he complained of injuries.

         Plaintiff states a Fourteenth Amendment claim for excessive force against Defendants Johnson, McCarter, and Reneau. See Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015). Plaintiff does not provide enough information to state a claim for the denial of medical care. Specifically, Plaintiff does not describe the extent of his injuries, or allege whether he was able to sign up for sick call despite not being able to pay the co-pay. Peoria County Jail should be dismissed as it is not a party amenable to suit under §1983. See Powell v. Cook County Jail, 814 F.Supp. 757, 758 (N.D. Ill. 1993) (holding the Cook County Jail was not a person under Section 1983).

         IT IS THEREFORE ORDERED:

         1. Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the court finds that the plaintiff states a Fourteenth Amendment claim for excessive force against Defendants Johnson, McCarter, and Reneau. 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.

         2. This 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.

         3. The 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.

         4. With 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 the clerk.

         5. The 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 considered.

         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 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 more detail.

         7. 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.

         8. The 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 ...


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