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David Gevas, #B-41175 v. Derwin Ryker

February 22, 2011

DAVID GEVAS, #B-41175, PLAINTIFF,
v.
DERWIN RYKER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Reagan U.S. District Judge

MEMORANDUM AND ORDER REAGAN, District Judge:

Plaintiff, David Gevas, an inmate in Stateville Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, arising out of several incidents that occurred while Plaintiff was housed in Lawrence Correctional Center. Plaintiff is serving a life sentence for murder. 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). Conversely, 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. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

Upon careful review of the complaint, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.

The Complaint

The Plaintiff's complaint, filed on July 8, 2010, sets out four separate claims against a total of ten defendants. In his first claim, Plaintiff alleges that when he was transferred into Lawrence Correctional Center on July 9, 2008, he was held for seven days in a cell that lacked water for consumption and sanitation, and lacked a working toilet. He made requests to Defendants Harrington, Brown, Vaughn and Ryker, for water, plumbing repairs, and to be moved to a cell with functioning water, but was not moved until July 15, 2008. As a result, Plaintiff suffered dehydration, headaches, constipation, insomnia, and other discomfort including nausea from the foul odor of the un-flushed toilet. Plaintiff's grievance over these conditions wasdenied on December 29, 2008, by the Administrative Review Board.

His second claim arose on December 9, 2008, when, after filing grievances requesting a move due to threats he had received from a gang-member cellmate, Defendant Walters placed him with a new cellmate (Williams) whose filthy personal hygiene was so offensive to the Plaintiff that he went on a hunger strike to demand another move. After declaring the hunger strike, Plaintiff was moved on December 10, 2008, to a cell where bright lights were kept on constantly. He claims this action was to torture him for being on a hunger strike. Two days later (December 12), Plaintiff was told he would be moved to a different cell, so he ended the hunger strike and was moved accordingly. However, on December 15, 2008, Defendant Cox moved Plaintiff back in with inmate Williams, so Plaintiff declared another hunger strike. This time, instead of placement in the hunger strike cell, Defendant Cox put Plaintiff in segregation for refusing housing, and filed a disciplinary report on Plaintiff, actions which Plaintiff claims were taken in retaliation for his filing of grievances. Defendant Goins then imposed 30 days' segregation on the disciplinary report, which Defendant Ryker approved. The Administrative Review Board denied Plaintiff's grievances over the cell assignments on June 2, 2009, and July 16, 2009, and denied the grievance over the 30 days' segregation on May 4, 2009.

Plaintiff's third claim faults Defendant Hoskinson for improperly opening and allowing other employees to open Plaintiff's confidential legal mail relating to another pending civil rights claim, on several occasions between April 2009 and February 2010. Defendant Ryker is charged with condoning these actions by failing to implement procedures to stop Plaintiff's legal mail from being improperly opened. Plaintiff also claims Defendant Hoskinson retaliated against him, by improperly returning a letter from Plaintiff's mother, after he filed grievances over his legal mail being opened. The Administrative Review Board denied Plaintiff's grievances on March 1 and March 23, 2010.

Finally, Plaintiff's fourth claim relates to Defendant Fenoglio's alleged failure to treat Plaintiff's mouth and shoulder injuries sustained in a fall from his top bunk on November 25, 2008, and the subsequent denial of follow-up treatment by Defendant Wexford Health Sources, Inc. He filed several grievances regarding medical treatment, including other concerns not raised in this petition. The earliest grievance was denied by the Administrative Review Board on January 1, 2009, and the latest was denied on April 19, 2010.

Plaintiff seeks a jury trial, a declaratory judgment that his constitutional rights have been violated by the Defendants' actions, a preliminary and permanent injunction ordering Defendant Wexford Health Sources to provide Plaintiff with specific medical treatment, and unspecified nominal, compensatory and punitive damages against each Defendant, jointly and severally. Discussion

Based on the allegations of the complaint, the Court finds it convenient to divide the pro se action into five (5) counts (reviewing separately the mail retaliation issue raised in Plaintiff's third claim). 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 - Deliberate Indifference to Unsanitary Cell Conditions

The Eighth Amendment prohibiting cruel and unusual punishment is applicable to the states through the Fourteenth Amendment. It has been a means of improving prison conditions that were constitutionally unacceptable. See, e.g., Robinson v. California, 370 U.S. 660, 666(1962); Sellers v. Henman, 41 F.3d 1100, 1102 (7th Cir. 1994). As the Supreme Court noted in Rhodes v. Chapman, 452 U.S. 337, 346 (1981), the amendment reaches beyond barbarous physical punishment to prohibit the unnecessary and wanton infliction of pain and punishment grossly disproportionate to the severity of the crime. Id., (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). The Constitution also prohibits punishment that is totally without penological justification. Gregg, 428 U.S. at 183.

Not all prison conditions trigger Eighth Amendment scrutiny -- only deprivations of basic human needs like food, medical care, sanitation, and physical safety. Rhodes, 452 U.S. at 346; See also James v. Milwaukee County, 956 F.2d 696, 699 (7th Cir. 1992). In order to prevail on a conditions of confinement claim, a plaintiff must allege facts that, if true, would satisfy the objective and subjective components applicable to all Eighth Amendment claims. McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994); see also Wilson v. Seiter, 501 U.S. 294, 302 (1991). The objective component focuses on the nature of the acts or practices alleged to constitute cruel and unusual punishment. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992). The objective analysis examines whether the conditions of confinement "exceeded contemporary bounds of decency of a mature, civilized society." Lunsford v. Bennett, 17 F.3d 1574, 1579 (7th Cir. 1994). The condition must result in unquestioned and serious ...


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