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Walker v. Niepert

September 23, 2009

TIMOTHY WALKER, PLAINTIFF,
v.
WILLIAM E. NIEPERT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: J. Phil Gilbert U. S. District Judge

MEMORANDUM AND ORDER

GILBERT, District Judge

Plaintiff, an inmate at Pinckneyville CorrectionalCenter, brings this action for deprivation of constitutional rights pursuant to 42 U.S.C. § 1983. 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, 590 U.S. 544, 570 (2007). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Although the Court is obligated to accept factual allegations as true, some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, No. 08-4286, 2009 WL 2535731, at *5 (7th Cir. Aug. 20, 2009).

Additionally, Courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. Rodriguez v. Plymouth Ambulance Service, No. 06-4260, 2009 WL 2498580, at *2 (7th Cir. Aug. 18, 2009).

THE COMPLAINT

On September 4, 2008, Plaintiff was written a disciplinary report by Defendant Niepert for "threats/intimidation." The alleged act of "threats/intimidation" was a letter that Plaintiff wrote to his wife "detailing his problems with . . . Niepert." According to Exhibits attached with the complaint, the letter stated that "I will kill one of these people that put their hands on me. Don't tell them this." Plaintiff was found guilty of the violation and received the following sanction: two months "C grade" and two months segregation. Plaintiff appealed the disciplinary action. On November 14, 2008, the Administrative Review Board recommended that the disciplinary report and action be expunged.

Plaintiff alleges that his First Amendment right to free speech and his right to due process of law were ...


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