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Parker v. Bartley

June 3, 2008

LEE HOLDEN PARKER, PLAINTIFF,
v.
KENNETH BARTLEY, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, and for violations of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. Plaintiff seeks damages, declaratory relief, and injunctive relief. 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 the supporting exhibits, the Court finds that some of Plaintiff's claims in the original complaint are subject to pre-service dismissal.

THE COMPLAINT

Liberally construing the complaint, it appears that Plaintiff is confined to a wheelchair. Plaintiff's complaint concerns three different times (May 2005, June 2006, and May 2007) he was transported in a vehicle between Pinckneyville Correctional Center (PCC) and Menard Correctional Center (MCC). In each instance, Plaintiff was transported in a van equipped with a wheelchair lift in the back. Plaintiff and his wheelchair were lifted into the rear passenger area of the van*fn1 and the wheelchair was secured to the floor of the van with Plaintiff "harnessed" into the chair. Plaintiff describes the method of securing his chair to the van floor as being "jury rigged." Plaintiff further alleges that the wheelchair has a warning label on it stating "No wheelchair has been approved for use as a seating surface within a motor vehicle." Plaintiff claims that the manner in which his wheelchair is secured inside the vehicle is improper, violates several safety standards, and creates a risk of serious injury or death to him - especially in the event of an accident.

With regard to the June 2006 incident, Plaintiff alleges that he filed grievances with Defendants Bartley and Dolce. Plaintiff contends that Dolce returned the grievance to him falsely claiming that it was untimely filed - an action that was upheld upon review by Defendants Kisro and Benton. Plaintiff contends that Defendants Bartley, Kisro, and Benton failed to take any corrective action based on this grievance. Plaintiff contends that, as a consequence, he was again transported to MCC in the manner described above.

Based on the allegations of the complaint, the Court finds it convenient to divide Plaintiff's pro se action into seven counts. 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 Crowell and Rodely for unsafely transporting Plaintiff from PCC to MCC in May 2005 in violation of Plaintiff's Eighth Amendment rights and in violation of the ADA.

COUNT 2: Against Defendants Shirley and Lind for unsafely transporting Plaintiff from PCC to MCC in June 2006 in violation of Plaintiff's Eighth Amendment rights and in violation of the ADA.

COUNT 3: Against Defendants McBride and Lunde for unsafely transporting Plaintiff from PCC to MCC in May 2007 in violation of Plaintiff's Eighth ...


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