Lee v. Mathy
| Jesse Lee |
| Assistant Warden Mathy, . Tangman, Brockert, Eddie Jones and . Gilbert |
| 1:2008cv01016 |
| January 11, 2008 |
| US District Court for the Central District of Illinois |
| Peoria Office |
| XX US, Outside State |
| Harold A. Baker |
| John A. Gorman |
| Plaintiff |
| 42 U.S.C. ยง 1983 Prisoner Civil Rights |
| Plaintiff |
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Filing
34
ORDER: 1) The defendant's motion for summary judgement is granted pursuant to Fed. R. Civ. P. 56 for failure to exhaust administrative remedies. [d/e 28] The clerk of the court is directed to enter judgment in favor of the defendants in accordan ce with this order. The parties are to bear their own costs. These cases are terminated. 2) If the plaintiff wishes to appeal this dismissal, he may file a notice of appeal with this court within 30 days of the entry of judgment. Fed. R. App. P. 4(a) (4). A motion for leave to appeal in forma pauperis should set forth the issues the plaintiff plans to present on appeal. See Fed. R. App. P. 24(a)(1). If the plaintiff does choose to appeal, he will be liable for the $455.00 appellate filing fe e irrespective ofthe outcome of the appeal. Furthermore, if the appeal is found to be nonmeritorious, the plaintiff may also accumulate another strike under 28 U.S.C. 1915(g). 3) The agency having custody of the plaintiff is directed to remit the doc keting fee of $350.00 from the plaintiff's prison trust fund account if such funds are available. If the plaintiff does not have $350.00 in his trust fund account, the agency must send 20 percent of the current balance, or the average balance during the past six months, whichever amount is higher; thereafter, the agency shall begin forwarding monthly payments from the plaintiff's trust fund account to the clerk of court eachtime the plaintiff's account exceeds $10.0 0 until the statutory fee of $350.00 is paid in its entirety. The filing fee collected shall not exceed the statutory filing fee of $350.00. 4) The plaintiff must notify the clerk of the court of a change of address and phone number within seven days of such a change. Release from incarceration does not relieve the plaintiff of his obligation to pay the filing fee in full. 5) The clerk is directed to mail a copy of this order to the plaintiff's place of confinement, to the attention of the Trust Fund Office. Entered by Judge Harold A. Baker (cc:Pla)
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Filing
6
ORDER entered by Judge Harold A. Baker on 2/6/08. IT IS THEREFORE ORDERED: (1) The court has consolidated cases 08-1016, 08-1021, 08-1030 and 08-1034. Theclerk of the court should add all defendants to this lead case of 08-1016. The plaintiff is advi sed that he should file any future motions only in case 08-1016. (2) Pursuant to its merit review of the complaint under 28 U.S.C. Section 1915A, the court finds that the plaintiff states the following federal claims: (1) Defendants Mathy, Jones, Br ocket, Tangman and Gilbert violated the plaintiff's First Amendment right to meaningful access to the courts when they repeatedly took legal documents from his cell; (2) Defendants Mathy, Jones, Brocket, Tangman and Gilbert violated the plaintif f'sEighth Amendment rights when they took his mattress, sheets and various otherproperty; (3) Defendants Mathy, Jones, Brocket, Tangman and Gilbert violated the plaintiffs First Amendment rights when they retaliated against him for his previous lawsuits; and (4) Defendants Tangman, Gilbert and Brockett used excessive force against the plaintiff when they pushed his head into his cell bars. The claims are against the defendants in their individual capacities only. (3) All other claims base d on federal law, other than those set forth in paragraph (2) above, are dismissed for failure to state a claim pursuant to 28 U.S.C. Section 1915A. (3) This case shall proceed solely on those federal claims identified in paragraph two above. Any cl aims not set forth in paragraph two above shall not be included in the case, except in the courtsdiscretion on motion by a party for good cause shown, or by leave of court pursuant to Federal Rule of Civil Procedure 15. (4) A Prisoner Scheduling Ord er shall be entered directing service and setting a Rule 16 conference date. (5) A copy of this Case Management Order shall be served with the Complaint and Scheduling Order. The defendants shall file an answer to the claims identified in this Case Management Order. (6) The defendants shall file an answer within the time prescribed by Local Rule. A motion to dismiss is not an answer. The answer must be considered a responsive pleading under FederalRule of Civil Procedure 15(a) and should inclu de all defenses appropriate under the Federal Rules. The answer and subsequent pleadings shall be to the issues and claims stated in this Case Management Order. (7) The plaintiffs motion to proceed in forma pauperis in Case No. 08-1034 is granted. [ d/e 2].Although the plaintiffs cases are consolidated, he must pay the filing fee in each case. (Case No.s 08-1016, 08-1021, 08-1030, 08-1034). The agency have custody of the plaintiff is directed to make monthly payments of 20 percent of the precedi ng months income credited to the plaintiffs account to the Clerk of the Court. The agency have custody of the plaintiff shall forward thesepayments each time the plaintiffs account exceeds $10, until the filing fee of $350 in Case No. 08-10 34 is paid in full. The clerk of the court is directed to mail a copy of this order to the plaintiff and his place of confinement, to the attention of the trust fund office. (8) The plaintiffs motion for appointment of counsel is denied. (Case No.08-1034, d/e 3). (cc: Plaintiff)(KB, ilcd)
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