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Hunter v. Dutton

December 28, 2006

MARKUS HUNTER, INMATE #A50324, PLAINTIFF,
v.
C/O DUTTON, C/O MASON, KENNETH L. HAMILTON, DAVID W. MITCHELL, LESLIE MARKEL, ROBERT S. FREY, JACKIE MILLER, AND ROGER E. WALKER, JR., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate in the Tamms Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983.

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. The parties and the Court will use these designations in all future pleadings 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 all Defendants for improper retaliation against Plaintiff for filing grievances and lawsuits against them.

COUNT 2: Against all Defendants for violations of due process in a disciplinary hearing. This case is now before the Court for a preliminary review of the complaint 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 complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are legally frivolous and thus subject to summary dismissal.

FACTUAL BACKGROUND

On March 20, 2005, Defendant Mason and C/O Weirheim (not a defendant) found an inhaler in Plaintiff's cell during a "shakedown" cell search at Tamms Correctional Center. As a result, Defendants Dutton and Mason wrote Plaintiff a disciplinary ticket for possession of drugs and drug paraphernalia and contraband. Plaintiff states that the inhaler was prescribed to him by a prison physician. At a subsequent disciplinary hearing on March 23, 2005, adjudicated by Defendants Mitchell and Hamilton, Plaintiff was found guilty of the charges and was disciplined with three months in segregation, a three-month demotion to c-grade, a three-month loss of commissary privileges, and a six-month loss of contact visits. Plaintiff objected to the disciplinary proceedings because he was innocent of the charges, the disciplinary report was written in retaliation for prior grievances filed against Defendants, and because Defendant Dutton did not participate in the search but signed the disciplinary report.

Plaintiff filed grievances regarding the alleged due process violations in the disciplinary hearing, but Defendant Markel denied them; Defendant Frey concurred in the denial. Plaintiff appealed the denied grievances, but the appeals were denied by Defendants Miller and Walker. Plaintiff states that each of these defendants, in denying the grievances despite their knowledge ...


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