United States District Court, C.D. Illinois
MERIT REVIEW OPINION
MYERSCOUGH, U.S. DISTRICT JUDGE.
proceeds pro se from his incarceration in Pontiac
Correctional Center about an incident which occurred in
Western Correctional Center. 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
alleges that he got into an argument with Officer Cooley on
February 2, 2018, regarding whether Plaintiff could speak to
his counselor or go back to retrieve his school materials
before proceeding to class. Officer Cooley denied
Plaintiff's requests and asked for Plaintiff's
identification card, which Plaintiff did not provide. Officer
Cooley then allegedly used excessive force by pushing
Plaintiff into the glass, which escalated to more excessive
force by other Defendants who came to assist Officer Cooley,
including kicking and hitting Plaintiff in the face.
allegations state a plausible Eighth Amendment claim for
excessive force. However, Plaintiff alleges he “never
grab[bed] Cooley['s] throat, ” which leads the
Court to believe that Plaintiff was written a disciplinary
report, though no report is attached. If Plaintiff lost good
time on a disciplinary report arising from this incident,
then Plaintiff cannot challenge the findings on that
disciplinary report. Edwards v. Balisok, 520 U.S.
641, 648 (1997)(claims which "necessarily imply the
invalidity of the deprivation of . . . [an inmate's]
good-time credits" are not cognizable under 42 U.S.C.
§ 1983 until the prison disciplinary decision has
otherwise been invalidated, for example by expungement, a
state court order, or a writ of habeas corpus). However, that
determination must wait for a more developed factual record.
IS THEREFORE ORDERED:
Pursuant to its merit review of the Complaint under 28 U.S.C.
§ 1915A, the Court finds that Plaintiff states an Eighth
Amendment 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 ...