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Taylor v. Winters

October 31, 2009

DONALD TAYLOR, PLAINTIFF,
v.
WINTERS, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate at the Vandalia Correctional Center when he filed this action, brings this action for deprivations of his 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

Plaintiff alleges that Winters and Whitler retaliated against him for filing grievances concerning "problems in the chow hall" and Whitler calling him racially derogatory names. The retaliation consisted of writing disciplinary tickets against Plaintiff and the Defendants being "antagonistic" and "confrontational" with Plaintiff during meal times. It appears that Plaintiff has crutches due to an unspecified knee problem. The "confrontations" during meal times appear to center on other inmates assisting Plaintiff with his food trays. Defendants insist that Plaintiff carry his own tray. Plaintiff asserts that other inmates assist him because his crutches make it difficult or impossible to carry his own tray. Because of the "confrontations" with the Defendants, it appears that Plaintiff attempted to stop going to meals, but was subsequently ordered to go to the chow hall even if he did not eat anything.

DISCUSSION

Prison officials may not retaliate against inmates for filing grievances or otherwise complaining about their conditions of confinement. See, e.g., Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000); Babcock v. White, 102 F.3d 267 (7th Cir. 1996); Cain v. Lane, 857 F.2d 1139 (7th Cir. 1988). Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009). Plaintiff's complaint alleges that he was issued unjustified disciplinary tickets and otherwise "harassed" by the Defendants because Plaintiff had filed grievances. Liberally construed, Plaintiff's allegations might lead a personal of ordinary firmness to stop engaging in First Amendment activity. Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982) (retaliatory act must deter a person of ordinary firmness from engaging in protected speech). Consequently, Plaintiff's complaint survives review under 28 U.S.C. § 1915A. See Bridges v. Gilbert, 557 F.3d 541, 551-53 (7th Cir. 2009).

Also before the Court is Plaintiff's motion for appointment of counsel (Doc. 3). There is no absolute right to appointment of counsel in a civil case. Cook v. Bounds, 518 F.2d 779 (4th Cir. 1975); Peterson v. Nadler, 452 F.2d 754 (8th Cir. 1971). When presented with a request to appoint counsel, the Court must make the following inquiries: "(1) has the ... plaintiff made a reasonable attempt to obtain counsel or effectively been precluded from doing so and (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself." Pruitt v. Mote, 503 F.3d647, 854-55 (7th Cir. 2007). With regard to the first step of the inquiry, there is no indication at all whether ...


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