United States District Court, C.D. Illinois
MERIT REVIEW OPINION
MYERSCOUGH, U.S. DISTRICT JUDGE.
who proceeds pro se from his incarceration in Dixon
Correctional Center, filed a complaint in the Southern
District of Illinois in February 2018. Judge Rosenstengel
conducted a merit review, identifying eight counts arising
from incidents during Plaintiff's incarceration in Graham
Correctional Center, which is in the Central District of
Illinois. (d/e 1.) Those eight counts were then severed from
Plaintiff's original action and transferred to this
eight counts are 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 omitted).
1-4 regard separate incidents of alleged harassment in Graham
Correctional Center by different officers, including refusing
to give Plaintiff a jacket on one day in May 2016, refusing
to allow Plaintiff to fill an empty tortilla bag with ice on
one day in August 2016, and writing Plaintiff disciplinary
tickets on separate days in November and December 2016. Count
8 involves allegations that, on one day in March 2017, a
Lieutenant joked that Plaintiff's suicide smock looked
like a dress.
Court cannot discern a federal claim from these counts. No
plausible inference arises that these separate, isolated
incidents amounted to deprivations objectively serious enough
to amount to cruel and unusual punishment under the Eighth
Amendment. Rhodes v. Chapman, 452 U.S. 337, 347
(1981)(“Conditions of confinement count as cruel and
unusual punishment only when they deny an inmate the minimal
civilized measure of life's necessities.”);
DeWalt v. Carter, 224 F.3d 607, 612 (7th
Cir. 2000)(“Standing alone, simple verbal harassment
does not constitute cruel and unusual punishment, deprive a
prisoner of a protected liberty interest or deny a prisoner
equal protection of the law.”); Beal v.
Foster, 803 F.3d 356, 358 (7th Cir.
2015)(defining simple verbal harassment as
“‘fleeting, ' too limited to have an
impact.”). That Plaintiff was written disciplinary
reports does not, alone, suggest any constitutional
violation. Plaintiff's allegations that these separate
incidents all took place to retaliate against Plaintiff for
unidentified grievances is too vague and conclusory to state
a First Amendment retaliation claim. See Cooney v.
Rossiter, 583 F.3d 967, 971 (7th Cir.
2009)(allegations of “vast, encompassing
conspiracy” not enough to state claim).
alleges excessive force by Defendants Wright, Badman, and
Gibson, in an incident on March 3, 2017. This incident
allegedly involved dragging Plaintiff backwards while in
cuffs and telling Plaintiff to “cuff up nigga.”
These allegations state plausible Eighth Amendment claims for
excessive force and failure to intervene. Plaintiff also
states a plausible equal protection claim that these actions
occurred because of Plaintiff's race. While racial slurs
alone are not actionable, they can be evidence that actions
were motivated by racial animus.
regards allegations of deliberate indifference to
Plaintiff's serious mental health needs. Plaintiff
alleges that he is a paranoid schizophrenic and was denied
his psychiatric medication twice in 2016. He also alleges
that he was not allowed in his housing unit because he was
hearing voices. Plaintiff does not identify any individuals
responsible for these actions.
may be able to state a claim for deliberate indifference to
his serious mental health needs during his incarceration at
Graham, but the present allegations do not do so. Plaintiff
does not explain why not being permitted in a place where he
was hearing voices was contrary to his mental health needs.
Additionally, missing two doses of medicine over the course
of an entire year does not allow an inference that anyone was
reckless or deliberately indifferent. Negligence does not
violate the Constitution. Zentmyer v. Kendall
County, 220 F.3d 805 (7th Cir. 2000)("[D]eliberate
indifference is an onerous standard for the plaintiff, and
forgetting doses of medicine, however incompetent, is not
enough to meet it here."). If Plaintiff files an amended
complaint that provides enough factual detail to state a
claim for deliberate indifference to his serious mental
health needs, then that claim will be severed into a new case
and Plaintiff will be assessed another filing fee.
IS THEREFORE ORDERED:
Pursuant to its merit review of the Complaint under 28 U.S.C.
§ 1915A, the Court finds that Plaintiff states Eighth
Amendment claims for excessive force and failure to intervene
regarding an incident on March 3, 2017. Plaintiff also states
a Fourteenth Amendment claim that the excessive force and
failure to intervene occurred because of Plaintiff's
race. This case proceeds solely on the claims identified in
this paragraph against Defendants Wright, Badman, and Gibson.
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
claims and Defendants not identified in paragraph (1) above
are dismissed without prejudice.
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 ...