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Smerling v. Howard

March 24, 2010

ROBERT SMERLING, PLAINTIFF,
v.
GLENN HOWARD, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate formerly confined at the Dixon Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. At the time Plaintiff submitted this complaint, he was still confined at Dixon Correctional Center and, therefore, the provisions of 28 U.S.C. § 1915A apply to his complaint. See Robbins v. Switzer, 104 F.3d 895, 897-98 (7th Cir. 1997). 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, 578 F.3d 574, 581 (7th Cir. 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, 577 F.3d 816, 821 (7th Cir. 2009).

THE COMPLAINT

Plaintiff alleges that in September 2008, while confined at the Vienna Correctional Center, he informed Defendants Howard and Reid that another inmate, Kevin Miller, had made threats against him. On September 22, 2008, Plaintiff's fears became a reality when, it is alleged, that inmate Miller attacked Plaintiff with his fist and a pencil. Plaintiff states that as a result of this attack, he suffered (and continues to suffer) from "a sinus fracture, decreased vision in [his] left eye, frequent head and eye socket pain, multiple orbital fractures and increased psychological sufferings." Plaintiff claims that Defendants Howard and Reid "failed to take reasonable measures to protect him prior to the assault after being fully informed by the Plaintiff" of the risk of attack.

Plaintiff further alleges that he was issued a disciplinary report in connection with this attack for fighting. Plaintiff protests that he is innocent of the fighting and that he never "engaged" with inmate Miller. Nevertheless Plaintiff was initially found guilty of fighting after a disciplinary hearing was conducted by Defendants Rockwell and Russell. This disciplinary finding, however, was overturned on appeal and the disciplinary charge was re-heard by Defendants Howard and Roundtree. On rehearing, Plaintiff was again found guilty of fighting and received the following disciplinary sanctions: 31 days on segregation; 2 months loss of commissary privileges; 2 months loss of phone privileges; and transfer to a more secure facility. As a result, Plaintiff was transferred to Shawnee Correctional Center. These sanctions were upheld by Defendant Johnson. Plaintiff filed grievances with Defendants Hathaway and Randle concerning the disciplinary action, but they did not intervene or change the result. Plaintiff contends that he was denied procedural due process in connection with the two disciplinary actions.

Based on the allegations of the complaint, the Court finds it convenient to divide Plaintiff's pro se action into two 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.

COUNT 1: Against Defendants Howard and Reid for failing to adequately protect him from a serious risk of attack by another inmate in violation of Plaintiff's Eighth Amendment rights; and

COUNT 2: Against Defendants Howard, Roundtree, Johnson, Rockwell, Russell, Hathaway, and Randle for denying Plaintiff of Due Process of law in ...


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