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Johnson v. Shemonic

September 30, 2010

TERRY C. JOHNSON, #B45089, PLAINTIFF,
v.
LISA SHEMONIC, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Terry C. Johnson, formerly an inmate in the Menard Correctional Center,*fn1 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, 550 U.S. 544, 570 (2007). Upon careful review of the complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; this action is subject to summary dismissal.

THE COMPLAINT

The factual allegations of this action are fairly simple. In September 2008, Johnson ordered some pornographic magazines from WPE Books and Magazines, and the necessary funds were transmitted from his prison account. Shortly after placing the order, Johnson received notice from WPE that his requested magazines contained some images of penetration. To comply with Illinois Department of Corrections (IDOC) policy, Johnson transmitted another $5.00 to have the publications edited.

In November 2008, Johnson's magazines were reviewed by Defendant Lisa Shemonic, the Publication Review officer, who recommended that the magazines be denied "due to penetration." Her recommendation was signed by Defendant Hulick two days later. Johnson alleges that Hulick did not specifically check the "I concur" line on the form, and thus he argues that Hulick implicitly did not concur with Shemonic's recommendation.*fn2

Johnson complained to his counselor, to Shemonic, and to Hulick about this perceived inconsistency and demanded his magazines. Shemonic responded, advising Johnson that his magazines were being withheld pursuant to a Department rule prohibiting publications that have been redacted, altered, or otherwise modified from the original published version. In a second response, Shemonic also advised Johnson that two of his magazines already were included on the Department's "disapproved" list (which is centrally managed by Defendant Anderson), and the others soon would be included on the list by the Central Review Committee in Springfield.

Out of this situation, Johnson sets forth six distinct substantive claims, seeking declaratory relief, injunctive relief, and an unspecified amount of compensatory and punitive damages.

COUNT 1--DENIAL OF PUBLICATIONS

Johnson's first claim is that by denying him access to his magazines, Defendants acted in violation of his rights under the First and Fourteenth Amendments. At issue are the Illinois regulations that set forth the procedures for screening inmate publications. Those regulations provide that publications may be rejected for many reasons, including a finding that it is "obscene" or "includes sexually explicit material that by its nature or content poses a threat to security, good order, or discipline or it facilitates criminal activity." 20 Ill. Admin. Code ยง ...


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