Thomas v. Ledbetter, No. 3:2015cv03280 - Document 7 (C.D. Ill. 2015)
Court Description: MERIT REVIEW OPINION Rule 16 Deadline 11/30/2015. Entered by Judge Sue E. Myerscough on 9/30/2015. (GL, ilcd)
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Thomas v. Ledbetter Doc. 7 E-FILED Wednesday, 30 September, 2015 08:18:06 AM Clerk, U.S. District Court, ILCD UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS LEO THOMAS, Plaintiff, v. BRIAN D. LEDBETTER, Defendant. ) ) ) ) ) ) ) ) ) 15-CV-3280 MERIT REVIEW OPINION SUE E. MYERSCOUGH, U.S. District Judge. Plaintiff proceeds pro se from his incarceration in the Pinckneyville 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.1 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 1 A prisoner who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Page 1 of 7 Dockets.Justia.com 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). Plaintiff alleges that Defendant Ledbetter, a correctional officer at Hill Correctional Center, engaged in escalating retaliation for Plaintiff’s grievances, including verbal threats and harassment, denying Plaintiff access to the property room, fabricating disciplinary tickets, and engineering Plaintiff’s transfer to a different prison. A constitutional retaliation claim requires an adverse action motivated at least in part by retaliation for an inmate’s First Amendment protected activity. The adverse action must be serious enough to deter a person of “ordinary firmness” from exercising the First Amendment right in the future. And, if the Defendant has evidence that the adverse action would have occurred anyway regardless of retaliatory motive, then the inmate must negate that evidence. See Peele v. Burch, 722 F.3d 956, 959 (7th Cir. 2013); Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.2009). Plaintiff’s allegations state a plausible constitutional retaliation claim. Officer Ledbetter’s verbal threats alone would not Page 2 of 7 be enough to state a claim, but the threats are evidence of retaliatory motive, and concrete adverse actions were taken against Plaintiff in addition to the threats. Accordingly, this case will proceed pursuant to the standard procedures. IT IS THEREFORE ORDERED: 1) Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states a claim for retaliation for the exercise of First Amendment protected activity. 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 15. 2) This case is now in the process of service. Plaintiff is advised to wait until counsel has appeared for Defendant before filing any motions, in order to give Defendant notice and an opportunity to respond to those motions. Motions filed before Defendant’s 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. Page 3 of 7 3) The Court will attempt service on Defendant by mailing a waiver of service. Defendant has 60 days from the date the waiver is sent to file an Answer. If Defendant has not filed an Answer or appeared through counsel within 90 days of the entry of this order, Plaintiff may file a motion requesting the status of service. After Defendant has been served, the Court will enter an order setting discovery and dispositive motion deadlines. 4) If 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 the Clerk. 5) Defendant 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 Page 4 of 7 answer sets forth Defendant’s positions. The Court does not rule on the merits of those positions unless and until a motion is filed by Defendant. Therefore, no response to the answer is necessary or will be considered. 6) This 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 Defendant’s 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 more detail. Page 5 of 7 7) Counsel for Defendant is hereby granted leave to depose Plaintiff at his place of confinement. Counsel for Defendant shall arrange the time for the deposition. 8) 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 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 through the U.S. Marshal's service on that Defendant and will require that Defendant to pay the full costs of formal service pursuant to Federal Rule of Civil Procedure 4(d)(2). 10) Within 10 days of receiving from Defendant’s counsel an authorization to release medical records, Plaintiff is directed to sign and return the authorization to Defendant's counsel. 11) The clerk is directed to enter the standard order granting Plaintiff's in forma pauperis petition and assessing an Page 6 of 7 initial partial filing fee, if not already done, and to attempt service on Defendant pursuant to the standard procedures. 12) The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. ENTERED: September 30, 2015 FOR THE COURT: /s/Sue E. Myerscough SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE Page 7 of 7
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