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Allen v. McAdory

December 13, 2005

ROBERT ALLEN, INMATE #N03705, PLAINTIFF,
v.
EUGENE MCADORY, MAJOR WINE, CRAIG S. MITCHELL, SERGEANT KLONT, MINH T. SCOTT, AND CHAD TODARO, DEFENDANTS.



The opinion of the court was delivered by: Murphy, Chief District Judge

MEMORANDUM AND ORDER

Plaintiff, an inmate in the Menard 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.

To facilitate the orderly management of future proceedings in this case, and in accordance with the objectives of Federal Rules of Civil Procedure 8(f) and 10(b), the Court finds it appropriate to break the claims in Plaintiff's pro se complaint and other pleadings into numbered counts, as shown below. Although these counts do not correspond directly to the legal claims as described by Plaintiff, they are based on the Court's determination of the claims that arise out of the facts stated in Plaintiff's complaint. The parties and the Court will use these designations in all future filings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit.

COUNT 1: Against Defendant Todaro for harassing and threatening Plaintiff in retaliation for Plaintiff's filing of grievances against him.

COUNT 2: Against Defendants McAdory, Wine, and Klont for failure to intervene to prevent Defendant Todaro from harassing Plaintiff.

COUNT 3: Against Defendants McAdory, Mitchell, and Scott for denying Plaintiff due process at a disciplinary hearing.

The Court now must conduct a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides, in pertinent part:

(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 complaint and any supporting exhibits, the Court finds that none of the claims in the complaint may be dismissed at this point in the litigation.

FACTUAL ALLEGATIONS

Plaintiff states that in January 1999, while he was an inmate at Menard Correctional Center, Defendant Todaro sexually harassed him on a number of occasions. Plaintiff filed grievances against Todaro. After witnessing one such incident, an unnamed Menard employee made a report of Todaro's conduct to a superior, and Todaro was ordered to stop the behaviors and was reassigned to a different cellhouse. Even after his reassignment, Todaro continued to harass Plaintiff when he saw him by making retaliatory threats and racial statements. At some point, Plaintiff was transferred to Pontiac Correctional Center. He was transferred back to Menard in May 2003. Upon his return, he was assigned to the North 1 cellhouse, where Todaro was then assigned. Todaro immediately began making retaliatory threats to Plaintiff, telling him that he would get him moved to segregation. Plaintiff filed grievances against Todaro, and Todaro continued to harass Plaintiff. After one incident of threatening behavior toward Plaintiff, Todaro "dead locked" Plaintiff in his ...


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