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Barbosa v. McCann

September 8, 2009

IRINEO BARBOSA, PLAINTIFF,
v.
TERRY MCCANN, JIMMY DOMINGUEZ, VANITA WRIGHT, ED BUTKIEWICZ, TAMMY GARCIA, MELODY J. FORD, LT. BURZINSKI, LT. VAUGHN DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Irineo Barbosa, currently an inmate at Stateville Correctional Center, brings this pro se action pursuant to 42 U.S.C. § 1983 against Defendants Terry McCann, the Warden of Stateville Correctional Center; Jimmy Dominguez,*fn1 Vanita Wright, Lieutenant Burzinski, and Lieutenant Vaughn, correctional officers at Stateville; Ed Butkiewicz, a counselor at Stateville; Tammy Garcia, a grievance officer at Stateville; and Melody J. Ford, the Chair of the Administrative Review Board. Plaintiff alleges that from May 2, 2007 through November 2, 2007, the conditions of his confinement at Stateville were inhumane and unconstitutional, that he was denied access to the courts, that his grievances were ignored, and that he did not receive adequate medical treatment. Defendants have moved to dismiss arguing that the compliant fails to state a claim for relief and that there is no basis for a finding of liability against the individual Defendants. For the following reasons, Defendants' motion to dismiss is granted in part and denied in part.

I. Standard of Review

In considering Defendants' motions, the court recognizes that pro se complaints are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000). Federal Rule of Civil Procedure 8(a)(2) requires only that the complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The court will accept well-pleaded allegations as true and will draw any reasonable inferences in favor of the plaintiff. Sprint Spectrum L.P. v. City of Carmel, 361 F.3d 998, 1001 (7th Cir. 2004). The complaint must, however, describe the claim in sufficient detail to "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 550 (2007), quoting Conley v. Gibson, 355 U.S. 41, 47 (1957). The complaint's allegations must include sufficient facts to "state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009), quoting Bell Atlantic, 550 U.S. at 570. As the Seventh Circuit has explained, Plaintiff's allegations "must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'; if they do not, the plaintiff pleads [him]self out of court." E.E.O.C. v. Concentra Health Serv., Inc. 496 F.3d 773, 779 (7th Cir. 2007). A plaintiff can also plead himself or herself out of court by pleading facts that undermine the allegations set forth in the complaint. See Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008).

II. Facts

From May 2, 2007 until November 2, 2007, Plaintiff was confined in punitive segregation at Stateville Correctional Center. Upon his arrival in segregation, he received a blanket and one dirty, torn sheet, but he was never issued a pillow. The blanket shed, irritating Plaintiff's lungs and eyes, and Plaintiff's mattress was dirty and lumpy, causing him back pain. Plaintiff's four-by-nine-foot cell, which he shared with another inmate, was filthy and roach-infested, and the only cleaning supplies he received were two small bars of soap once every week or so. As a result, Plaintiff's skin broke out in "red bumps all over his body." Plaintiff's belongings, stored under the cell's bunk pursuant to prison regulations, were eaten by rodents, and roaches frequently crawled on his body during the night. Because there was no ladder in his cell, Plaintiff was forced to climb on the toilet and sink in order to reach the top bunk. All the toilets in Plaintiff's ward flushed once every 15 minutes, causing him distress. Plaintiff received no more than one haircut per month, and he never received a razor despite an alleged policy that razors were to be distributed once a week for shaving.

Plaintiff claims that food trays routinely sat for hours before being served and that he consequently never received a hot meal during his confinement. Eating these cold meals upset his stomach and caused him to become constipated. Plaintiff also suffered heartburn because breakfast was served at 2:00 a.m.

Plaintiff received just one ten-minute shower each week. From September to November, he showered in the cold air that entered the shower area through broken windows. There was nowhere for Plaintiff to store his clothes and shower gear while showering and, because there was but a single hook in the cell, only one inmate could hang his towel to dry and Plaintiff's own towel remained damp between showers. Plaintiff had a recreation session just once each week, and otherwise was confined to his cell other than for medical treatment or to see a visitor during visiting hours.

Plaintiff alleges that prisoners with medical issues had to wait for treatment until a medical technician ("med-tech") made rounds, Monday through Friday mornings. After an examination by the med-tech, Plaintiff alleges, inmates were required to wait two more days to receive a diagnosis from the med-tech, who was not qualified to make such determinations, before being seen by a medical doctor.

Finally, Plaintiff complains of inadequate library services for inmates held in punitive segregation. Paralegals and law clerks were expected to make rounds once a week, he alleges, but during the time that Plaintiff was in punitive segregation, the legal staff did not tour for as long as nine weeks at a time. Plaintiff also complains that prisoners were only permitted "to order three cases per week and shepardize five case cites per week." (Compl. at 5.) These limitations on library access, Plaintiff alleges, prevented him from learning the law necessary for his petition for post-conviction relief, and as a result, someone else had to file the petition on his behalf. The petition was dismissed on June 10, 2008, as being frivolous and patently without merit.

Plaintiff contends that all Defendants were aware of all of the alleged unconstitutional conditions because of the numerous grievances Plaintiff filed, which Defendants reviewed and denied.

III. Analysis

Plaintiff's allegations can be understood as presenting four claims: first, that the conditions of his confinement were unconstitutional; second, that he was denied access to the courts; third, that Defendants failed to respond to his grievances; and fourth, that ...


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