Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Koch v. Westerman

February 2, 2009

SHAWN KOCH, PLAINTIFF,
v.
DARRELL WESTERMAN, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate at the Menard Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff seeks monetary and injunctive relief for alleged violations of his First, Fourth, and Eighth Amendment rights. 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).

THE COMPLAINT

In restating the allegations of the complaint, below, the Court has found it useful to divide Plaintiff's pro se action into 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.

A. Allegations Concerning Access to the Courts

Plaintiff's complaint claims that he was denied access to the courts in violation of his constitutional rights on four separate occasions. First, Plaintiff alleges that in January 2005 Defendant "John/Jane Doe 2" failed to process Plaintiff's payment of a $5.00 filing fee that Plaintiff owed to the United States District Court for the Central District of Illinois. Plaintiff asserts that his federal case was dismissed because the filing fee was not received by the court. For Count 1, Plaintiff claims that Defendant "John/Jane Doe 2" denied him access to the courts in connection with this federal case.

Second, Plaintiff alleges that in February 2005 Defendant "John/Jane Doe 2" delivered court mail to him late and opened court mail addressed to him mail outside of his presence. For Count 2, Plaintiff claims that Defendant "John/Jane Doe 2" denied him access to the courts by delivering his legal mail late and by opening the court mail outside of his presence.

Third, Plaintiff alleges that in July 2005 Defendant B. Thomas destroyed a "supplemental TRO motion" with the Defendant's name on it. For Count 3, Plaintiff claims that Defendant B. Thomas denied him access to the courts by destroying his TRO motion.

Fourth, Plaintiff alleges that in August 2005 he received a motion to dismiss concerning a case he had pending in state court. Plaintiff further alleges that he was advised that he had 21 days to respond to the motion. Plaintiff asserts that he sent a request for legal materials to Menard's law library through Defendant "John/Jane Doe 2," but that this Defendant did not mail the request (or, perhaps, did not mail all of it). Because his request for legal materials was not fulfilled, Plaintiff contends that he was unable to file a timely response to the motion to dismiss. Plaintiff states that the state court denied his request for an extension of time and dismissed his action. For Count 4, Plaintiff claims that Defendant "John/Jane Doe 2" denied him access to the courts by not processing his request for legal materials which led to the dismissal of the state court action.

B. Allegations Concerning Retaliation

Plaintiff's complaint recites numerous acts which Plaintiff contends were undertaken in retaliation for Plaintiff's filing of grievances. These acts, which are alleged to have occurred between April 2005 and October 2005, include: (1) searches of Plaintiff's cell; (2) searches of Plaintiff's person; (3) verbal harassment directed at Plaintiff; (4) disdainful looks and stares directed at Plaintiff; (5) confiscation of certain items of Plaintiff's personal property (e.g., a racquetball and a pair of gloves); (6) other inmates being told that Plaintiff is a snitch; and (7) physical confrontations and uses of force (e.g., being pushed into a door frame, squeezing Plaintiff's testicles, and being "assaulted"). Plaintiff asserts that all of these alleged acts were committed by or at the direction of Defendant Westerman. Plaintiff claims that, as part of Westerman's retaliation scheme, Defendants B. Thomas, John Doe 1, and Miller participated in some or all of the alleged retaliatory acts. For Count 5, Plaintiff alleges that Defendants Westerman, B. Thomas, John Doe 1, and Miller retaliated against him for filing grievances in violation of Plaintiff's First Amendment rights.

C. Allegations Concerning "Unreasonable" Search and Seizure

The alleged retaliatory searches of Plaintiff's cell and his person, described in Count 5, form the basis of Plaintiff's claim, Count 6, that Defendants Westerman, B. Thomas, Brad Thomas, and Coleman conducted searches that were "unreasonable" under the Fourth Amendment. Liberally construing the complaint, it appears that Plaintiff would allege that the searches were conducted without proper cause.

D. Allegations Concerning Excessive Use of Force

The alleged retaliatory physical confrontations, described in Count 5, form the basis of Plaintiff's claim, Count 7, that the Defendants Westerman, B. Thomas, Miller, and John Doe 1 used excessive force on him in violation of his Eighth Amendment rights.

E. Allegations Concerning Denial of Medical Care

Plaintiff claims that on May 23, 2005, he suffered an injury to his elbow and shoulder as a result of being pushed into the door frame in retaliation for filing grievances. For Count 8, Plaintiff claims that Defendants Westerman, B. Thomas, and John Doe 1 denied him adequate medical care for this injury. For Count 9, Plaintiff claims he was denied medical treatment by Defendants Westerman, Miller, and John Doe 1 after being "assaulted" on October 19, 2005, as part of the retaliation scheme. With regard to this claim, however, Plaintiff has not alleged any type of injury from the assault.

For Count 10, Plaintiff alleges that he was denied adequate medical care for his injuries by Defendants Reardon, Murray, Brad Thomas, Coleman, Uchtman, Benton, and Walker, even ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.