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Richard E. Slater, #B-78598 v. James Watkins

September 13, 2011

RICHARD E. SLATER, #B-78598, PLAINTIFF,
v.
JAMES WATKINS, GEORGE JOHNSON, BILLY VAUGHN, AND MARVIN F. POWERS, DEFENDANTS.



The opinion of the court was delivered by: G. Patrick Murphy United States District Judge

MEMORANDUM AND ORDER MURPHY, District Judge:

Plaintiff Richard E. Slater, an inmate in Tamms Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff is serving a fifteen year sentence for a cocaine offense, and two years for aggravated battery of a peace officer.

Previously, this Court determined that Plaintiff's claims against several Defendants regarding deliberate indifference to his medical needs should be severed into a separate case. Severance was ordered on August 23, 2011 (Doc. 16). The claims remaining in this case stem from a December 5, 2008, incident where Plaintiff alleges excessive force was used against him.

This case is now before the Court for a preliminary review of Plaintiff's remaining claims 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 and supporting exhibits, the Court finds that Plaintiff's claims cannot be dismissed at this time.

The Complaint

On December 5, 2008, Plaintiff was being escorted back to his cell by Defendants Watkins, Johnson, and Vaughn, after a visit to the nursing station to receive insulin (Plaintiff has diabetes). Before leaving the nursing station, Plaintiff had words with Defendant Johnson. Back at the cell, Defendant Johnson told Plaintiff, "You think something is funny, fat fucker?" (Doc. 1, p. 3). Defendant Johnson then tripped Plaintiff, slamming him into the cell, and forced Plaintiff to the floor. Next, Defendant Johnson "stood" on Plaintiff's neck with his knee (Doc. 1, p. 3). Plaintiff asked Defendant ...


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