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Funches v. Ebbert

November 9, 2007

PEREZ FUNCHES, PLAINTIFF,
v.
RACHEL L. EBBERT, SHARON MCCORKLE, ROBERT A. KUNTZ, NEIL C. BANTICAN, TIMOTHY LOVE, DERWIN L. RYKER, AND ROGER E. WALKER, JR., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate in the Dixon Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq.*fn1 Also before the Court is Plaintiff's motion to appoint counsel (Doc. 3). Plaintiff's pro se complaint is divided into five enumerated counts. After reviewing the complaint, however, the Court finds it appropriate to rearrange these counts into seven counts, as stated 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 Ebbert and McCorkle for denying Plaintiff access to the courts.

COUNT 2: Against Defendants Ebbert and McCorkle for retaliating against Plaintiff by denying Plaintiff access to the courts because Plaintiff had filed grievances against them.

COUNT 3: Against Defendant Ebbert for interfering with Plaintiff's rights to petition the government for the redress of grievances, in violation of Plaintiff's rights under the First Amendment.

COUNT 4: Against Defendant Ebbert for retaliating against Plaintiff by interfering with Plaintiff's right to petition the government for redress of grievances because Plaintiff had filed grievances against Ebbert in violation of Plaintiff's rights under the First Amendment.

COUNT 5: Against Defendants Kuntz and Bantican for denying Plaintiff due process of law in connection with a disciplinary action in violation of Plaintiff's rights under the Fourteenth Amendment.

COUNT 6: Against Defendant Love for denying Plaintiff his right to freely exercise his religion in violation of Plaintiff's rights under the First Amendment and RLUIPA.

COUNT 7: Against Defendant Ryker and Walker for failing to correct the unconstitutional actions taken by their subordinates.

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). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). 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 subject to summary dismissal.

Plaintiff alleges that Defendants Ebbert and McCorkle prevented him from filing a timely petition for a writ of certiorari with the Supreme Court of the United States from an order issued by the Seventh Circuit Court of Appeals denying plaintiff a certificate of appealability. See Funches v. Hurlick, Case No. 05-3322 (7th Cir., Nov. 9, 2005) (denying certificate of appealability). Specifically, Plaintiff assets that Ebbert and McCorkle failed to schedule time for him to spend in the law library during a period when the facility was on lock-down. Plaintiff states that his inability to access the law library prevented him from researching and preparing his petition for a writ of certiorari. Plaintiff further alleges that the actions of Defendants Ebbert and McCorkle in failing to secure him access to the law library were intentionally taken in retaliation for Plaintiff filing unspecified grievances against Ebbert and McCorkle.

Plaintiff alleges that Defendant Ebbert interfered with his First Amendment free speech rights by confiscating twelve affidavits - signed by Plaintiff and eleven other inmates - Plaintiff had attached to a grievance "regarding living conditions." Additionally, because plaitniff possessed the affidavits of eleven other inmates, Defendant Ebbert issued Plaintiff a conduct violation for violating an institutional rule against "petitions, postings, and business ventures." Plaintiff also claims that Defendant Ebbert's actions were intentionally taken in retaliation for Plaintiff filing unspecified grievances against him.

Plaintiff asserts that Defendants Kuntz and Bantican denied him due process of law in connection with the disciplinary hearing they conducted concerning the violation issued to Plaintiff by Ebbert. Specifically, Plaintiff claims that the disciplinary decision was not supported by sufficient evidence, that Defendants Kuntz and Bantican were not impartial, that they failed to ...


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