United States District Court, C.D. Illinois
FRANKIE N. WALKER, SR. Plaintiff,
KERRYANN HUGHES, et al.,, Defendants.
MERIT REVIEW AND CASE MANAGEMENT ORDER
A. BAKER UNITED STATES DISTRICT JUDGE
plaintiff, proceeding pro se, a civil detainee at the
Rushville Treatment and Detention Facility
(“Rushville”) is requesting leave to proceed
under a reduced payment procedure for indigent plaintiffs who
are institutionalized but are not prisoners as defined in 28
U.S.C. Section 1915(h).
“privilege to proceed without posting security for
costs and fees is reserved to the many truly impoverished
litigants who, within the District Court's sound
discretion, would remain without legal remedy if such
privilege were not afforded to them.” Brewster v.
North Am. Van Lines, Inc., 461 F.2d 649, 651
(7th Circ. 1972). Additionally, a court must
dismiss cases proceeding in forma pauperis “at
any time” if the action is frivolous, malicious, or
fails to state a claim, even if part of the filing fee has
been paid. 28 U.S.C. § 1915(d)(2). Accordingly, this
court grants leave to proceed in forma pauperis only
if the complaint states a federal action.
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 filed this lawsuit pursuant to 42 U.S.C. §
1983 alleging that Defendants Simpson and Hughes
intentionally misled him regarding the manner in which a
state court petition was mailed (certified vs. first class).
Plaintiff alleges this later caused issues regarding service
in the state lawsuit. Plaintiff also alleges that the use of
polygraph machines as part of his treatment is
unconstitutional because polygraph machines are unreliable.
Plaintiff alleges that because of a failed polygraph test,
plaintiff was stuck between Phase 2 and 3 of a
“five” phase sex offender program for seven (7)
construed, plaintiff states a claim for denial of access to
the courts against Defendants Simpson and Hughes.
Marshall v. Knight, 445 F.3d 965, 968 (7th Cir.
2006). Plaintiff does not state a claim related to use of the
polygraph machine as part of the treatment he receives at the
facility. See Walker v. Pennock, No. 13-3079, ECF
No. 117 at 8-9 (C.D. Ill., filed Jul. 11, 2017) (collecting
cases). Even if Plaintiff stated a claim related to the use
of the polygraph, he would have to bring that claim in a
separate lawsuit as it involves different claims and
defendants. Owens v. Godinez, 860 F.3d 434, 436 (7th
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 First Amendment access-to-the-courts claim against
defendants Simpson and Hughes. 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
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
7. Counsel for the defendants is hereby granted leave to
depose the plaintiff at his place of confinement. Counsel for
the defendants shall ...