United States District Court, C.D. Illinois
MICHAEL M. MIHM UNITED STATES DISTRICT JUDGE
proceeding pro se and detained at the Rushville
Treatment and Detention Center (“Rushville”),
files a complaint and petition for 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 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. Plaintiff
pleads that on May 25, 2017, there was a “fire hazard
emergency” at Rushville, not otherwise explained.
Plaintiff and other residents were initially locked inside
their cells and then evacuated to the Central Yard,
presumably an outdoor space. When the emergency was over, the
residents walked back to their cells and began criticizing
staff for “putting their lives in danger” by
locking them in during the fire hazard emergency. Plaintiff
and others spoke about complaining to the administrative
offices in Springfield. This conversation was allegedly
overheard by Defendant McCullough, a Rushville Security
Therapy Aid (“STA”). Defendant McCullough wrote a
disciplinary charge against Plaintiff which went to hearing
before the Disciplinary Committee. Plaintiff does not reveal
the Committee’s decision and does not claim that he
suffered any discipline or loss of privileges as a result.
Plaintiff does not affirmatively state it, it appears that he
is asserting a retaliation claim. As a civil detainee,
Plaintiff has a protected First Amendment right to grieve the
conditions under which he is held. Hughes v. Scott,
816 F.3d 955, 956 (7th Cir. 2016). Officials may not
retaliate against a civil detainee for his exercise of a
constitutional right. Henderson v. Adams, No.
06-6451, 2007 WL 4287559, at *5 (N.D. Ill. Nov. 30, 2007)
(internal citations omitted). The assertion of a grievance is
protected activity even if in verbal, not written form.
Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir.
2006) (“legitimate complaints [do not] lose their
protected status simply because they are spoken”).
Plaintiff alleges that he was retaliated against for
complaining about the staff’s handling of the fire
hazard emergency. To successfully plead such a claim
Plaintiff must allege that (1) he engaged in activity
protected by the First Amendment, (2) he suffered a
deprivation that would likely deter First Amendment activity
in the future, and (3) the First Amendment activity was
"at least a motivating factor" in the
Defendants' decision to take the retaliatory action.
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir.
has sufficiently alleged that he was engaged in protected
First Amendment activity. He does not, however, address the
next element, that he “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, Plaintiff
does not claim that he was found guilty or suffered detriment
due to Defendant McCullough filing the disciplinary report..
Plaintiff has, therefore, failed to allege a necessary
element of retaliation but will be given an opportunity to
replead and provide more detail.
IS THEREFORE ORDERED:
Plaintiff's complaint is dismissed for failure to state a
claim pursuant to Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. §
1915A. Plaintiff will have 30 days from the entry of this
order in which to replead his claims. The pleading is to be
captioned Amended Complaint and is to include all of
Plaintiff’s claims without reference to a prior
pleading. Failure to file an amended complaint will result in
the dismissal of this case, without prejudice, for failure to
state a claim.
Plaintiff’s petition to proceed in forma pauperis [ECF
3] is DENIED with leave to reassert if he files an amended
complaint. Plaintiff’s motion for ...