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Flemings v. Illinois Dep't of Corrections

November 8, 2010

MARVIN FLEMINGS, PLAINTIFF,
v.
ILLINOIS DEPARTMENT OF CORRECTIONS, ET.AL., DEFENDANTS.



The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge

MERIT REVIEW ORDER

This cause is before the court for a merit review of the plaintiff's claims. The court is required by 28 U.S.C. §1915A to "screen" the plaintiff's complaint, and through such process to identify and dismiss any legally insufficient claim, or the entire action if warranted. A claim is legally insufficient if it "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §1915A.

The plaintiff, a pro se prisoner, has filed this lawsuit pursuant to 42 U.S.C. §1983 claiming that his constitutional rights were violated at the Hill Correctional Center. The Plaintiff did not use a standard complaint form, but instead has filed a confusing array of documents with the court including 72 pages of both handwritten claims and exhibits. The document clearly violates the pleading requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure. On the first few pages, the Plaintiff lists the following as Defendants in the caption of his complaint: the Illinois Department of Corrections, Warden Acevedo and Illinois Attorney General Lisa Madigan. It is not until page 16 that the Plaintiff provides another list of defendants including: Correctional Officers R. Mills, Mr. Stewart, Mr. Mason, and Mr. Saunucter; Warden Gerardo; Administrative Review Board Member Sarah Johnson; Illinois Department of Corrections Director Michael Randle; Dr. Johns; Nurse Mrs. Lindorff and Inmate Michael Taylor.

The plaintiff's complaint is rambling and repetitive, but he clearly identifies the following claims:

1) "Body and Property Tampering." (Comp, p.17)

The Plaintiff claims officers are somehow directing inmates to spit on him when he is out of his cell and his cell mate is wiping his urine on the plaintiff's property. The Plaintiff claims these actions could cause his death. The Plaintiff has failed to articulate a violation of his constitutional rights. The Plaintiff does not allege that he was harmed in any way nor that he suffers from any serious medical condition. The Plaintiff has also failed to identify any officers that are responsible for the actions of his cell mate or any other inmate.

2) "Damage Property."(Comp, p.17)

The Plaintiff says on July 7, 2009, he saw Officer Stewart came into his cell while he and his cell mate were at dinner. When the Plaintiff returned, he says there were lines on his television. The Plaintiff says the incident has not been properly investigated.

The Plaintiff has failed to state a violation of his constitutional rights. Based on the allegations in his complaint, no one saw Officer Stewart damage the Plaintiff's television. However, even if the officer was responsible, both the Supreme Court and the Seventh Circuit have found no due process violation for damaging property without authority as long as the state "provides [the prisoner] with an adequate post-deprivation remedy." Stewart v McGinnis, 5 F.3d 1031, 1036 (7th Cir. 1993); see also Hudson v Palmer, 468 U.S. 517 (1984). Therefore, the Plaintiff may file a tort claim in the Illinois Court of Claims for any property loss. Stewart, 5 F.3d at 1036; see also Morissette v DeTella, 1997 WL 619851 at 8 (N.D.Ill. Sept. 29, 1997).

3) "Denial of Commissary"(Comp, p.18)

The Plaintiff says on August 22, 2009, Commissary Officer Saunucter wrote on a commissary slip that the Plaintiff had insufficient funds and owed $25.09. The Plaintiff claims this is incorrect and he did have money in his account. Even if this were true, the Plaintiff has failed to articulate a violation of his constitutional rights based on this one time occurrence. In fact, "even if commissary privileges had been denied completely, (the Plaintiff) has no constitutionally protected right to commissary access." Stewart v McGinnis, 800 F.Supp 604, 619 (N.D.Ill. 1992).

4) "Thief of Money Order- Damage" (Comp, p.18).

The Plaintiff says on April 14, 2009, Officer Mills gave the Plaintiff a big envelope which contained a letter from his mother that was ripped in half. The envelope also indicated that the enclosed money order had been "returned to sender because of being damaged by the U.S. Post Office." (Comp., p. 9). The Plaintiff says he did not receive the money order, nor did he receive a letter from the post office telling him they were sorry for the damage to his mail. The Plaintiff says he "feels the officers and administration had something to do with this mail..." (Comp., p. 9). A response to the Plaintiff's grievance indicates the money order was extremely damaged so it was returned to the sender to be replaced. The letter, envelope and acknowledgment of post office handling damage was given to the Plaintiff.

The Plaintiff has failed to articulate a violation of his constitutional rights. Federal Rule of Civil Procedure 8 requires a complaint allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). The plaintiff's wild speculation that some ...


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