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ROSE v. SNYDER

May 19, 2005.

KEON ROSE, Plaintiff,
v.
DONALD N. SNYDER, JR., JONATHAN R. WALLS, TOM MAUE, STEPHEN L. JINES, BILLY J. CONWAY, C. HOSKIN, MARK S. COLVIS, ROBERT J. SIZEMORE, JEFFREY A. JAENKE, DOUGLAS W. CAMPBELL, MINH T. SCOTT, KAY A. SURMAN, ANDREW WILSON, ROBERT A. BIGAS, MAVIS GROSS, DONNA EBERS, JAMISON L. FRAZIER, and WILLIAM SPILLER, Defendants.



The opinion of the court was delivered by: DAVID HERNDON, District Judge

MEMORANDUM AND ORDER

Plaintiff, currently an inmate in the Stateville Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff previously was granted leave to proceed in forma pauperis, and he has tendered his initial partial filing fee as ordered.

PENDING MOTIONS

  At the outset, the Court will address three pending motions. First is Plaintiff's motion for a status hearing (Doc. 8), but a hearing is not yet warranted in this action. Therefore, this motion is DENIED.

  Second is Plaintiff's motion for default judgment (Doc. 10). However, as Defendants have not yet been served in this action, a default judgment is not warranted, and this motion is also DENIED.

  Third is Plaintiff's motion for appointment of counsel (Doc. 9). There are five factors which a district court should consider in ruling on a request to appoint counsel. Those factors are (1) whether the merits of the claim are colorable; (2) the ability of the indigent to investigate crucial facts; (3) whether the nature of the evidence indicates that the truth will more likely be exposed where both sides are represented by counsel; (4) capability of the indigent to present the case; and (5) the complexity of the legal issues raised by the Complaint. See Merritt v. Faulkner, 697 F.2d 761 (7th Cir. 1983), cert. denied, 464 U.S. 986 (1983); McKeever v. Israel, 689 F.2d 1315 (7th Cir. 1982); Maclin v. Freake, 650 F.2d 885 (7th Cir. 1981); Wilson v. Duckworth, 716 F.2d 415 (7th Cir. 1983).

  When deciding whether to appoint counsel, the Court must first determine if a pro se litigant has made reasonable efforts to secure counsel before resorting to the courts. Jackson v. County of McLean, 953 F.2d 1070, 1072 (7th Cir. 1992). Plaintiff makes no showing that he has attempted to retain counsel. Therefore, the Court finds that appointment of counsel is not warranted, and the motion for appointment of counsel is DENIED.

  AMENDED COMPLAINT

  This case is now before the Court for a preliminary review of the amended complaint (Doc. 7) pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening. — The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal. — On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint — (1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Upon careful review of the amended complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are frivolous and thus subject to summary dismissal.

  In this action, Plaintiff claims that he has been subjected to religious persecution by I.D.O.C. employees at Menard, at the direction of Defendants Snyder, Maue, Spiller and Walls. Plaintiff states that he is a practitioner of the Rastafarian faith.*fn1 As part of his religious observance, Plaintiff wears his hair in dreadlocks. According to a Department memorandum from Defendant Maue dated September 1, 2000 (attached as an exhibit to the amended complaint), "at no time will Disciplinary Segregation status inmates be permitted outside their cells without the removal of their hair braids or dreadlocks." For reasons apparently irrelevant to this action, Plaintiff was confined to the disciplinary segregation unit at Menard, beginning in early 2002. Because he refused to remove, or undo, his dreadlocks in compliance with Department policy, he received a series of disciplinary tickets from Jines, Conway, Hoskin, Sizemore, Colvis, Jaenke, Campbell, Frazier, Hood and Spiller.*fn2 Ironically, each of these tickets resulted in more time spent in disciplinary segregation, perhaps creating an unending cycle.

  It is well-established that "a prisoner is entitled to practice his religion insofar as doing so does not unduly burden the administration of the prison." Hunafa v. Murphy, 907 F.2d 46, 47 (7th Cir. 1990); see Al-Alamin v. Gramley, 926 F.2d 680, 686 and nn. 3-5 (7th Cir. 1991) (collecting cases). On the other hand, a prison regulation that impinges on an inmate's First Amendment rights is nevertheless valid "if it is reasonably related to legitimate penological interests." O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). Such interests include inmate security and the proper allocation of limited prison resources. See id. at 348, 352-53; Turner, 482 U.S. at 90; Al-Alamin, 926 F.2d at 686.

  Plaintiff argues that the policy is question is not reasonably related to security issues, as there are other, less restrictive ways in which an inmate with dreadlocks can be searched for contraband. At this point in the litigation, the Court cannot make a determination as to the validity of Plaintiff's argument. Therefore, at this time, the Court is unable to dismiss the claims against Snyder, Maue, Spiller, Walls, Jines, Conway, Hoskin, Sizemore, Colvis, Jaenke, Campbell, and Frazier. See 28 U.S.C. § 1915A.

  On the other hand, Plaintiff lists Minh T. Scott, Kay A. Surman, Andrew Wilson, Robert A. Bigas, Mavis Gross and Donna Ebers as defendants in the caption of his amended complaint, but the statement of claim does not include any allegations against these defendants. "A plaintiff cannot state a claim against a defendant by including the defendant's name in the caption." Collins v. Kibort,143 ...


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