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Swapsy v. Knoblett

March 10, 2010

ROBERT SWAPSY, PLAINTIFF,
v.
GARY L. KNOBLETT, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Robert Swapsy, formerly an inmate in the Robinson Correctional Center, 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, 127 S.Ct. 1955, 1974 (2007). Upon careful review of the complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.

CLAIM 1

Swapsy states that in June 2008, Defendant Knoblett issued a ticket against him for unauthorized movement. Swapsy was found guilty, but through the grievance/appeal process the ticket was later expunged. After Swapsy successfully challenged the ticket, Knoblett began to verbally harass him and threaten him. Swapsy claims that this harassment was done in retaliation for the grievance he filed against Knoblett.

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). With a retaliation claim, the Court must consider whether the plaintiff experienced an adverse action that would likely deter First Amendment activity in the future, and if the First Amendment activity was "at least a motivating factor" in the defendant's decision to take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009).

Swapsy's complaint does not specifically allege that Knoblett's allegedly retaliatory activities would "deter a person of ordinary firmness" from exercising First Amendment activity in the future. Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982). However, construing his pro se complaint liberally, and accepting all of his allegations as true, one possible inference of the complaint is that the alleged harassment by Knoblett would deter a person of ordinary firmness from exercising his First Amendment rights. Whether his allegations are in fact true or whether the alleged harassment would actually deter a person of ordinary firmness are not questions that the Court can address at the pleading stage. Further, Swapsy implies that Knoblett would not have harassed him but for his success in overturning the disciplinary ticket written by Knoblett.

Thus, the court is unable to dismiss this claim against Knoblett at this point in the litigation.

CLAIM 2

In his second claim, Swapsy alleges that the Assistant Warden, Defendant Tylka, failed to take action to stop Knoblett's retaliatory actions against him. Such a claim of a person's failure to act sounds in negligence, but a defendant cannot be held liable under § 1983 for negligence. Daniels v. Williams, 474 U.S. 327, 328 (1986); Zarnes v. Rhodes, 64 F.3d 285, 290 (7th Cir. 1995). Thus, Swapsy ...


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