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Borrero v. Konz

July 16, 2008

LAZARO D. BORRERO, PLAINTIFF,
v.
A. KONZ, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Harold A. Baker United States District Judge

ORDER

This cause is before the court for consideration of the plaintiff's motion to amend his complaint [d/e 8], motion for appointment of counsel [d/e 4] and motion for a temporary restraining order or preliminary injunction. [d/e 6]

The plaintiff, a federal prisoner, has filed a second complaint which the court will label "First Amended Complaint." [d/e 8] The plaintiff's initial complaintwas not written on a standard complaint form and was instead written in letter format. Nonetheless, the plaintiff clearly indicated that it was his intent to file a lawsuit pursuant to Bivens v.Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The plaintiff's First Amended Complaint is written in complaint format.

Rule 15(a) of the Federal Rules of Civil Procedure clearly provides that a plaintiff "may amend his pleading once as a matter of course at any time before a responsive pleading is served." Fed. R. Civ. P. 15 (a). Therefore the plaintiff will be allowed to file his First Amended Complaint. The court is required by 28 U.S.C. §1915A to "screen" the plaintiff's First Amended Complaint, and through such process to identify and dismiss any legally insufficient claim, or the entire action if warranted. A claim is legally insufficient if it "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §1915A.

The plaintiff claims his constitutional rights were violated at the Federal Correctional Institution in Pekin, Illinois. The plaintiff has named eight defendants including Staff Member A. Konz, Lieutenant H. Wallace, Officer Tapley, Officer Rockhold, Lieutenant Fardel, Captain Verforth, Warden Zuercher and "persons unknown."

The plaintiff alleges that the defendants have taken a variety of actions against him because he is a black, Cuban male. For instance, on April 25, 2008, the plaintiff says he and another inmate were called into an office and accused of not being in the classroom they were assigned to. The plaintiff says Defendant Konz was aware the class had been canceled.

Nonetheless, the plaintiff says only he was punished and taken to the Special Housing Unit (Herein SHU). The plaintiff says he was "illegally held" in SHU and never received an incident report, nor a disciplinary hearing. The plaintiff says this was also in violation of Bureau of Prison Policy

On April 30, 2008, the plaintiff says he filed grievances against the defendants. The plaintiff says he received no response. However, the plaintiff says the defendants began to retaliate against him because of this grievance.

On May 22, 2008, the plaintiff says he stopped in front of his living unit to speak to another inmate. The plaintiff states that several other inmates were also standing and talking in the area. The plaintiff says Defendant Tapley, in a racist manner, singled him out and told him to keep moving. The plaintiff says when he attempted to ask a question, the officer immediately got angry and began yelling at the plaintiff that he needed to listen or go to SHU. The plaintiff says he was escorted to SHU without any explanation. The plaintiff says the officer then wrote a disciplinary report against him accusing him of insolence and refusing an order. The plaintiff says the ticket was dismissed. Nonetheless, the plaintiff says Defendant Fardel continued to hold the plaintiff in SHU. The plaintiff alleges that Defendant Fardel was retaliating against him for his earlier grievance.

The plaintiff also says on May 23, 2008, Defendant Rockhold cut off the water to his cell for 33 hours. The plaintiff says the act was racially motivated. In addition, the plaintiff says before the defendant turned off his water, he asked the plaintiff if he was the inmate involved in the incident with Officer Tapley.

The plaintiff then details events that occurred in June of 2008. The plaintiff says in early June, he complained to Defendant Verforth about his time in segregation and he was served with a fraudulent Administrative Detention Order. In addition, on June 24, 2008, the plaintiff says Defendant Fardel conspired with others to violate his First Amendment rights when he monitored and recorded a telephone conversation. The plaintiff says he did not receive a copy of this rule violation until July 2, 2008.

The plaintiff claims his time in SHU violates the Fifth and Fourteenth Amendment as well as Bureau of Prisons policies. The plaintiff says Defendants Verforth and Zuercher were aware of these violations and made no attempt to remedy the problem. The plaintiff says their actions were motivated by race.

The plaintiff has adequately alleged that Defendants Konz, Wallace, Tapley, Rockhold, Fardel, Verforth and Zuercher violated his equal protection rights under the Fifth Amendment. To state a Bivens Equal protection claim, a prisoner must show that he is a member of a protected class and the defendants treated him differently from other similarly-situated individuals who are not members of that class. Pacheco v. Lappin, 2006 WL 237091 (7th Cir. Feb., 1, 2006).

For the purposes of notice pleading, the court also finds that the plaintiff has alleged that Defendant Rockhold violated his Eighth Amendment rights based on his living conditions when he was forced to live in a cell without water. The plaintiff has further alleged that ...


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