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Anthony Gay, #B-62251 v. Marvin Powers

September 15, 2011

ANTHONY GAY, #B-62251, PLAINTIFF,
v.
MARVIN POWERS, DEFENDANT.



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

MEMORANDUM AND ORDER

Plaintiff Anthony Gay, an inmate in Tamms Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, and seeks redress for tort claims under Illinois state law. Plaintiff was originally incarcerated on a 1994 robbery conviction, for which he was sentenced to seven years. Since then, he has amassed numerous other convictions while in prison, for aggravated battery against peace officers, as well as a conviction for possession of a weapon. As a result, he is serving consecutive sentences that will keep him in prison until approximately 2095.

This case was originally filed by Plaintiff in the Circuit Court of the First Judicial District of Illinois, Alexander County, Case No. 2010-MR-32, on April 13, 2010 (Doc. 2, p. 1). Defendant Powers removed the case to this Court on January 10, 2011, after Plaintiff filed an amended complaint raising an Eighth Amendment claim, in addition to his state law claims. Defendant Powers paid the filing fee upon removing the case, thus making it unnecessary for this Court to analyze whether Plaintiff would be permitted to proceed in forma pauperis (See Doc. 10).

The amended complaint (Doc. 2-1, p. 1-3) is now before the Court for a preliminary review 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. In addition, for reasons that shall be explained below, this case shall be remanded back to the Circuit Court of Alexander County.

The Complaint

The following factual summary is taken from Plaintiff's amended complaint (Doc. 2-1), submitted to the Circuit Court in Alexander County, Case ...


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