United States District Court, C.D. Illinois
MERIT REVIEW OPINION
MYERSCOUGH UNITED STATES DISTRICT JUDGE.
proceeds pro se from his incarceration in Peoria County Jail.
His Complaint is 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).
alleges that on May 15, 2018, inmates were told to go on lock
down at the Peoria County Jail. Plaintiff refused but offered
to go to the “naked” cell, which is allegedly an
isolation cell with a 24-hour watch. Plaintiff told Officer
Cox that Plaintiff “would be ok as long as no one
touched me.” (Compl. p. 6.) Officer Cox responded by
touching Plaintiff on the shoulder despite Plaintiff telling
Officer Cox that Plaintiff was not playing around and needed
isolation. Officer Cox then allegedly punched Plaintiff in
Plaintiff's jaw, whereupon Plaintiff struck back in
self-defense. Further altercation ensued, and Cox tased
Plaintiff in the back four to seven times. A criminal charge
is pending against Plaintiff for aggravated battery based on
this incident. Illinois v. Robinson, 18-CF-277
seeks to file criminal charges against Officer Cox, but the
Court cannot order a prosecutor to pursue charges. Plaintiff
does state a claim for excessive force, which will proceed.
However, if Plaintiff is convicted or pleads guilty in the
aggravated battery case, then Plaintiff will not be able to
pursue claims that are inconsistent with that conviction or
guilty plea. Additionally, this case will likely have to be
stayed pending the resolution of the aggravated battery case.
Those determinations will be made after defense counsel has
appeared, and the record is more developed.
IS THEREFORE ORDERED:
Pursuant to its merit review of the Complaint under 28 U.S.C.
§ 1915A, the Court finds that Plaintiff states a
constitutional claim for excessive force. This case proceeds
solely on the claims identified in this paragraph. 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
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 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 Defendants' positions. The
Court does not rule on the merits of those positions unless
and until a motion is filed by Defendants. Therefore, no
response to the answer is necessary or will be considered.
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 Plaintiff with the Clerk. Plaintiff does
not need to mail to Defense counsel copies of motions and
other papers that 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. 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 Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendants
shall arrange the time for the deposition.
Plaintiff shall immediately notify the Court, in writing, of
any change in his mailing address and telephone number.
Plaintiff's failure to notify the Court of a change in
mailing address or phone number will result in dismissal of
this lawsuit, with prejudice.
9) If a
Defendants fails to sign and return a waiver of service to
the clerk within 30 days after the waiver is sent, the Court
will take appropriate steps to effect formal service through
the U.S. Marshal's service on that Defendant and will
require that Defendant to pay the ...