United States District Court, C.D. Illinois
MERIT REVIEW- AMENDED COMPLAINT
MICHAEL M. MIHM, UNITED STATES DISTRICT JUDGE
proceeding pro se and detained at the Rushville
Treatment and Detention Center (“Rushville”),
files an amended complaint and seeks leave to proceed in
forma pauperis. The "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 Cir. 1972). 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 claim.
reviewing the amended complaint, the Court accepts the
factual allegations as true, liberally construing them in
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)(quoted cite omitted).
is civilly detained in the Rushville Treatment and Detention
Center pursuant to the Illinois Sexually Violent Persons
Commitment Act, 725 ILCS 207/1, et seq. On November
17, 2016, Plaintiff was assigned to housing unit E-2-15 and
was the sole occupant in a two-person room. Plaintiff claims
that Dawn Meyers, a Rushville Security Therapy Aid
(“STA”), not a party, harassed him, prompting him
to send a Resident Room Change Request to Defendant Paula
Lodge, a member of the Rooming Committee. In the request,
Plaintiff complained about Ms. Meyers, asking Defendant Lodge
to move him to a different unit.
November 28, 2016, Defendant Lodge and Defendant Hankins
approved the room change but assigned Plaintiff to a room
with another resident, Michael Boaz. Plaintiff claims that
this was unusual as he has never had a roommate during his
time at Rushville. Plaintiff refused to accept Mr. Boaz as a
roommate on that date and, when asked again on December 6,
2016. On April 25, 2017, Defendants Lodge and Hankins
allegedly tried to “force” him to room with still
another resident. It appears that Plaintiff refused this room
assignment as well.
unidentified date, Plaintiff was issued incident reports for
refusing housing. Plaintiff asked Defendant Lodge why the
Rooming Committee members were being “spiteful,
vindictive” and “playing games.” Defendant
Lodge allegedly responded that that they were doing so in
response to his complaints about Ms. Meyers.
December 12, 2016, Plaintiff appeared before the Disciplinary
Committee of which Defendant Hankins was a member. Plaintiff
objected to Defendant Hankins’ participation as he had
been involved in the housing assignments which led to the
disciplinary charges. Defendant Hankins allegedly told
Plaintiff that since he complained about Ms. Meyers, he had
to be willing to deal with the consequences. It is unclear
whether Defendants’ statements were evidence of
retaliation or whether they were merely advising Plaintiff
that there were no single rooms available on a different
unit. It is also unclear whether Plaintiff was, in fact,
roomed with another. His complaint appears to indicate that
he refused all such room changes and it might well be that he
continued to reside on the original unit.
plead retaliation, Plaintiff must allege that he was
retaliated against for exercising a constitutionally
protected right and that he suffered a deprivation likely to
deter future First Amendment activity. Massey v.
Johnson, 457 F.3d 711, 716 (7th Cir. 2006). Here,
Plaintiff alleges that he was retaliated against for
complaining about a staff member, a protected First Amendment
activity. Dobbey v. IDOC, 574 F.3d 443, 446 (7th
Cir. 2009). The next issue is whether Plaintiff
“suffered a deprivation that was so substantial it
would deter a reasonable person from exercising his rights in
the future.” Wilson v. Rensing, No.15- 249,
2018 WL 784053, at *3 (S.D. Ill. Feb. 8, 2018) (one month in
segregation and demotion to C class would not deter a
reasonable person); see also, Harper v.
Davis, No. 09-0878, 2011 WL 3841703, at *7 (N.D. Ill.
Aug. 23, 2011). Here it is not clear that Plaintiff suffered
a deprivation at all, as he does not indicate that he was
housed with another resident. Plaintiff fails to allege a
necessary element of a retaliation claim but will be given an
opportunity to replead in the event that the Court
misunderstood his pleading.
is another potential issue with the statute of limitations as
Plaintiff filed his complaint on December 3, 2018, alleging
conduct which occurred November 28, 2016, December 6, 2016,
and April 25, 2017. Claims brought under ' 1983 are
generally governed by a two-year statute of limitations.
Draper v. Martin, 664 F.3d 1110, 1113 (7th Cir.
2011) ("[i]n Illinois, the statute of limitations period
for § 1983 claims is two years, 735 ILCS
5/13-201”). See also, Bray v. Gary Police
Dept. Chief, No. 10-229, 2010 WL 2674531 (N.D. Ind. June
28, 2010) (“[t]he statute of limitations is an
affirmative defense, but if a plaintiff “pleads facts
that show his suit is time-barred or otherwise without merit,
he has pleaded himself out of court.”)
the retaliation alleged on November 28, 2016 appears timely
filed, the status of the December 6, 2016, and April 25, 2017
complaints is not as clear. “The first issue when a
statute of limitations is in issue is accrual, for that is
when the statute of limitations begins to run. Federal law
determines when the cause of action accrues, and under
federal law, a cause of action accrues “when the
plaintiff knew or should have known that [he] had sustained
an injury.” Key v. Illinois Dept. of State
Police, 06-CV-4068-JPG, 2006 WL 3229999, at *4 (S.D.
Ill. Nov. 7, 2006) (internal citations omitted). See
Huber v. Anderson, 909 F.3d 201, 207 (7th Cir. 2018)
(“accrual occurs when ‘the plaintiff has ‘a
complete and present cause of action, ’ ... that is,
when ‘the plaintiff can file suit and obtain
relief.’”) (internal citations omitted).
retaliation claim accrues “when the plaintiff knows or
should know that his or her constitutional rights have been
violated.” Booker v. City of Chicago, No.
11-732, 2011 WL 6152290, at *5 (N.D. Ill.Dec. 6, 2011) citing
Kelly v. City of Chicago, 4 F.3d 509, 511 (7th
Cir.1993). See also, Williams v. Linguard,
No. 02-0472-C, 2003 WL 23269344, at *3 (W.D. Wis. May 14,
2003) (a retaliation claim accrues when plaintiff first
learns of the retaliatory motive.)
it appears that Plaintiff learned of the allegedly
retaliatory motive on November 28, 2016, when he was assigned
to share a room with resident Boaz. If these claims represent
a continuing violation, they have likely been timely filed.
If, however, they were separate, discrete acts, the two later
claims might have been filed too late. It is clear, however,
that “[a] district court should not raise and resolve
affirmative defenses at screening unless the outcome is
obvious and would render the suit frivolous....”
Jervis v. Mitcheff, 2007 WL 435543, *2 (7th Cir.
Dec. 13, 2007). Here, the outcome is not obvious and the
Court declines to determine the statute of limitations issue