United States District Court, C.D. Illinois
MERIT REVIEW ORDER
MICHAEL M. MIHM, UNITED STATES DISTRICT JUDGE
proceeding pro se, pursues a § 1983 action for
excessive force, inhumane conditions of confinement,
retaliation, and deliberate indifference to his serious
medical needs at the Pontiac Correctional Center
(“Pontiac”). The case is before the Court for a
merit review pursuant to 28 U.S.C. § 1915A. In 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, 649-51 (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. United States, 721 F.3d 418, 422 (7th
Cir. 2013)(citation and internal quotation marks omitted).
While the pleading standard does not require “detailed
factual allegations”, it requires “more than an
accusation.” Wilson v. Ryker, 451 Fed.Appx.
588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
filed his complaint on August 9, 2019, alleging events which
occurred from April 12, 2017 through April 21, 2017. On April
12, 2017, Plaintiff was taken to segregation by Defendant
Punke after having assaulted Defendant Punke. Plaintiff
claims that Defendant overly tightened the handcuffs and
jerked Plaintiff's hands “in all directions.”
Plaintiff asserts that this caused deep, bleeding lacerations
to his wrists. Plaintiff was thereafter placed in a strip-out
cell which had feces, blood and semen on the walls and
floors. Plaintiff claims that he was in this excessively cold
cell for nine days, without a blanket.
complained of the conditions to Defendant Major Prentiss,
requesting that the cell be cleaned or that he be provided
cleaning supplies. Defendant refused this request as well as
Plaintiff's request for medical treatment to his wrists.
Plaintiff claims that the unsanitary conditions made him
“very sick” without providing any detail as to
how it sickened him. He also claims that he suffered joint
pain in his left elbow and shoulder and numbness of his left
thumb and forefinger, due to Defendant Punke's alleged
use of excessive force.
claims that he wrote related grievances and, when he checked
their status, discovered that they had never been received.
Plaintiff believes that Defendant Prentiss intercepted and
destroyed them. He includes with his complaint, however, two
written grievances. One is dated May 9, 2017 and the other
May 22, 2017. Both have “Handwritten copy” noted
at the top. It is unclear, therefore, whether these are
original copies or re-created copies of the allegedly
destroyed grievances. Plaintiff also provides an August 14,
2017 decision of the Administrative Review Board regarding a
May 22, 2017 grievance complaining of: “4/12/17 - Strip
out status, (24 hrs).” This grievance was returned to
Plaintiff with instructions that he submit it for
institutional review by the Counselor, Grievance Officer and
Chief Administrative Officer.
complaint, Plaintiff asserts an excessive force claim against
Defendant Punke and inhumane conditions of confinement,
deliberate indifference to a serious medical need and
retaliation against Defendant Prentiss. He requests
compensatory and punitive damages.
Court notes that Plaintiff filed his complaint more than two
years after the events at issue. 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.”) See
also, Davenport v. Dovgin, 545 Fed.Appx. 535, 538 (7th
Cir. 2013). “[A] court may dismiss a claim as
time-barred if the complaint sets forth the necessary
information to show that the statute of limitations has
statute of limitations will be tolled, however, during the
time period a prisoner exhausts his grievances. See
Johnson v. Rivera, 272 F.3d 519, 521-22 (7th Cir. 2001).
Here, Plaintiff provides evidence that one of his complaints,
likely that grieving the conditions of confinement in
segregation, went through the grievance process through
August 14, 2017. As a result, the statute of limitations was
tolled, and the August 8, 2019 complaint was timely filed, at
least as to this issue. While it is not clear that the
statute of limitations was tolled as to all of
Plaintiff's claims, the Court does not have enough
information at this time, and will allow the matter to
proceed, as indicated in this order.
Court finds that Plaintiff has pled enough to state a
colorable claim of excessive force against Defendant Punke.
He has also successfully pled an inhumane conditions of
confinement and deliberate indifference claim against
Defendant Prentiss. Plaintiff has not, however, pled a
colorable retaliation claim. Plaintiff has asserted that
Defendant Prentiss retaliated against him for having
assaulted an officer, likely, Defendant Punke. To
successfully plead retaliation, however, Plaintiff must
assert that he suffered retaliation in response to the
exercise of a constitutionally protected right. Pearson
v. Welborn, 471 F.3d 732, 738 (7th Cir. 2006). Plaintiff
does not, of course, have a constitutionally protected right
to assault an officer. See Watkins v. Kasper, 599
F.3d 791, 799 (7th Cir. 2010) (“if a prisoner violates
a legitimate prison regulation, he is not engaged in
‘protected conduct,' and cannot proceed beyond step
one of a First Amendment retaliation claim.”) (Internal
citation omitted). The retaliation claim is DISMISSED.
IS THEREFORE ORDERED:
case shall proceed solely on the excessive force claim
against Defendant Punke and the inhumane conditions of
confinement, and deliberate indifference claim against
Defendant Prentiss. Plaintiff's retaliation claim is
DISMISSED. All other claims will not be included in the case,
except in the Court's discretion upon motion by a party
for good cause shown, or by leave of court pursuant to
Federal Rule of Civil Procedure 15.
Clerk is directed to send to each Defendant pursuant to this
District's internal procedures: 1) a Notice of Lawsuit
and Request for Waiver of Service; 2) a Waiver of Service; 3)
a copy of the Complaint; and 4) a copy of this Order.
3. If a
Defendant 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 on that
Defendant and will require that Defendant pay the full costs
of formal service pursuant to Federal Rule of Civil Procedure
4(d)(2). If a Defendant no longer works at the address
provided by Plaintiff, the entity for which Defendant worked
at the time identified in the Complaint shall provide to the
Clerk Defendant's current work address, or, if not known,
Defendant's forwarding address. This information will be
used only for purposes of effecting service. Documentation of
forwarding addresses will be maintained only by the Clerk and
shall not be maintained in the public docket nor disclosed by
Defendants shall file an answer within the prescribed by
Local Rule. A Motion to Dismiss is not an answer. The answer
it to include all defenses appropriate under the Federal
Rules. The answer and subsequent ...