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Sherrell C. Towns v. Rebecca Cowan

January 6, 2011

SHERRELL C. TOWNS,
PLAINTIFF,
v.
REBECCA COWAN, ET AL., DEFENDANTS.



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

#B-20513,

MEMORANDUM AND ORDER

Plaintiff, an inmate in the Menard 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, in pertinent part:

(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). Upon careful review of the complaint and any supporting exhibits, the Court finds that Counts 1A, 1B, 2, 3, and 4 in the complaint may be dismissed as to some of the named Defendants at this point in the litigation, while Counts 1C and 2 survive as to some of the named Defendants.

Facts:

A contraband letter was found in Plaintiff's cell after a shakedown. Because the letter was determined to be a security threat, Plaintiff was issued a disciplinary ticket. Plaintiff was then interviewed by Defendant Cowan regarding the letter and its contents. Plaintiff refused to answer questions regarding the contents of the letter, even after being threatened by Defendant Cowan with disciplinary measures. Plaintiff invoked his right to silence, and was issued another disciplinary ticket from Defendant Cowan for impeding an investigation, to which Defendant Inman added charges of aiding and abetting, solicitation, and conspiracy based on the contents of the letter. After a hearing in which statements were used from a confidential source, Plaintiff was sentenced to segregation as well as other restrictions by Defendants J. Goforth and Lee. Defendants Cowan, Bauersachs, and John Doe #1 again questioned Plaintiff as to the contents of the letter, and Plaintiff again remained silent, prompting more threats of discipline.

While in segregation Defendant Neipert placed another inmate in the cell with Plaintiff as a cellmate, despite both inmates requesting to remain in individual cells. After both inmates were placed in the same cell, Plaintiff's cellmate declared a hunger strike, and when Defendants Cobb and John Doe #2 came around during the 11:00 PM to 7:00 AM shift to deliver meals the cellmate physically blocked the door so that Defendants could not provide food to Plaintiff. Defendant Cobb instructed the cellmate to move, but when the cellmate refused Defendants Cobb and John Doe #2 continued on their rounds without successfully delivering a food tray to Plaintiff. The same situation occurred when Defendants Anderson and Mezo attempted to provide food trays to the cell during the 7:00 AM to 3:00 PM shift. Finally, during the 3:00 PM to 11:00 PM shift Plaintiff's cellmate was removed from the cell so that Plaintiff could be given a food tray.

Plaintiff then filed a grievance (grievance 1) concerning the actions of Defendants Bauersachs, John Doe #1, Cowan, Inman, Neipert, Dunn, Mitchell, and Maue in relation to the incident. The grievance was not addressed by Defendant Suhre, so Plaintiff re-filed said grievance, which was ultimately denied by Defendant Suhre. Plaintiff filed a separate grievance (grievance 2) against Defendants Cobb, John Doe #2, Anderson, and Mezo concerning the same incident. This grievance was sent to Defendant L. Goforth, who did not respond. Plaintiff refiled the grievance (grievance 2), this time sending it to the warden, who ultimately denied the grievance. Plaintiff then re-filed all grievances (grievance 3) with Defendant Spiller. Ultimately all of the said grievances were dismissed by Defendant Spiller as untimely.

Some time later Plaintiff was escorted along with his cellmate by Defendants Roy and Davis to the shower room and instructed to take a shower. However, because there was only one shower head, and because Plaintiff's cellmate refused to allow Plaintiff to use it, Plaintiff was denied a shower while Defendants Davis, Roy, Anthony, Phillips, and Chandler looked on.

Plaintiff filed a grievance (grievance 4) related to this incident, alleging that the named Defendants were attempting to encourage homosexual behavior by placing the two inmates in the shower together, and sent it to the law library in the prison for copies. Plaintiff did not receive his copies until forty nine (49) days later, after which the appeal was denied. The day after Plaintiff's copies were returned to him, he was given a new cellmate, who Plaintiff believed to be a homosexual, by Defendants Neipert and Mezo. This incident lead Plaintiff to believe that the grievance he filed (grievance 4) had been read by the librarian Defendant Schorn, who informed Defendants Neipert and Mezo of its contents, which lead to the placement of Plaintiff's new cellmate. Plaintiff then filed a new grievance (grievance 5) concerning the reading of his previous grievance as well as the placement of the new inmate. This grievance (grievance 5) was sent to Defendants Suhre and L. Goforth, who did not respond.

Discussion:

To facilitate the orderly management of future proceedings in this case, and in accordance with the objectives of Federal Rules of Civil Procedure 8(f) and 10(b), the Court finds it appropriate to break the claims in Plaintiff's pro se complaint and other pleadings into numbered counts, as shown below. 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: Retaliation

Plaintiff claims that Defendants Cowan, Inman, Lee, J. Goforth, Neipert, Bauersachs, John Doe #1, Dunn, Mitchell, Maue, Cobb, John Doe #2, Anderson, Mezo, and Schorn each retaliated against him for various reasons. Each alleged cause for ...


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