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Whitmore v. Snyder

August 7, 2007

TROY D. WHITMORE, INMATE #N-71463, A/K/A DON GREGERSON, PLAINTIFF,
v.
DONALD SNYDER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gilbert, 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. 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 amended complaint (Doc. 16) 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 Defendants Mezo and Ferrell for denying him access to the yard, in violation of his rights under the Fourteenth Amendment (¶¶ 39-45).

COUNT 2: Against Defendant Mezo for use of excessive force, in violation of his rights under the Eighth Amendment (¶¶ 46-56, 58).

COUNT 3: Against Defendants Torville, Westerman, Moore and unspecified officers for use of excessive force, in violation of his rights under the eighth Amendment (¶¶ 59-85).

COUNT 4: Against Defendants Moore, Ferrell, Welborn, Fritz and Casten for denial of medical attention, in violation of his rights under the Eighth Amendment (¶¶ 86-101).

COUNT 5: Against Defendants Casten and Fritz for use of excessive force, in violation of his rights under the Eighth Amendment (¶¶ 102-105).

COUNT 6: Against Defendants Moore and Walker for denial of medical attention, in violation of his rights under the Eighth Amendment (¶¶ 106-112).

COUNT 7: Against Defendants Henry, Greenly and Carter, for not providing him with edible food, in violation of his rights under the Eighth Amendment (¶¶ 113-118).

COUNT 8: Against Defendant Carter for use of excessive force, in violation of his rights under the eighth Amendment (¶¶ 119-121).

COUNT 9: Against Defendants Carter and Henry for filing false disciplinary tickets against him, in violation of his rights under the Fourteenth Amendment (¶ 123).

COUNT 10: Against Defendants Carter, Helmer, Miner and Essary for confining him to inhumane conditions, in violation of his rights under the eighth Amendment (¶¶ 124-136).

COUNT 11: Against Defendants Wilson and Vasquez for conducting an improper disciplinary hearing, in violation of his rights under the Fourteenth Amendment (¶¶ 137-141).

COUNT 12: Against Defendants Summers and Murray for unfairly depriving him of two months of yard access, in violation of his rights under the Fourteenth Amendment (¶¶ 142-152).

COUNT 13: Against Defendants Andersen, Robinson and Fritz for denying him a shower, in violation of his rights under the Eighth Amendment (¶¶ 153-160).

COUNT 14: Against Defendant Robinson for use of excessive force, in violation of his rights under the Eighth Amendment (¶¶ 161-174).

COUNT 15: Against Defendants Rees, Carter, Witthoft, Fritz, Greely, Hood, Henry and Presswood for excessive force (¶¶ 175-214).

COUNT 16: Against Defendants Rees, Presswood and Witthoft for placing him a stripped control cell in retaliation for filing a lawsuit (¶¶ 215-233).

COUNT 17: Against unspecified defendants for subjecting him to an unfair disciplinary hearing (¶¶ 234-236).

COUNT 18: Against Defendants McAdore, Ryan, Middendorf, Snyder, Walker, Summers, Murray, Uchtman and Goforth for procedural irregularities in handling his grievances (¶¶ 57, 238-278).

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.

COUNT 1

On November 22, 2002, Defendant Mezo took Plaintiff to the yard, offering him a coat that did not have a zipper. Plaintiff refused that coat and asked for another. Mezo would not provide him with another coat; instead, Mezo returned him to his cell for refusing to go to the yard. Plaintiff claims that his yard time was unfairly revoked by Mezo without proper due process, and Ferrell supported Mezo's decision.

When a plaintiff brings an action under § 1983 for procedural due process violations, he must show that the state deprived him of a constitutionally protected interest in "life, liberty, or property" without due process of law. Zinermon v. Burch, 494 U.S. 113, 125 (1990). Plaintiff claims that he was denied yard access on just one day, but this allegation does not present a viable constitutional claim. See, e.g., Thomas v. Ramos, 130 F.3d 754, 762 n.8 (7th Cir. 1997) (and cases cited therein) (no protected liberty interest in demotion to C-grade status and loss of commissary privileges). Accordingly, he has failed to state a claim upon which relief may be granted, and Count 1 is dismissed from this action with prejudice.

COUNT 2

While returning Plaintiff to his cell, Mezo yanked hard on the lead restraint, causing excruciating pain to his right wrist. Plaintiff asked for medical attention; a medical technician promptly arrived, gave him some pain medication, and scheduled him to see a doctor. A day or two later, the doctor suspected a fracture and scheduled ...


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