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Robert Garrett, Doc # N74351 v. Gregory Schwatz

September 19, 2011

ROBERT GARRETT, DOC # N74351, PLAINTIFF,
v.
GREGORY SCHWATZ, LIEUTENANT DINTELMAN, C/O COLGAN, C/O MYERS, OFFICER HARRIS, OFFICER URBANKE, AND LIEUTENANT BRADLEY, DEFENDANTS.



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

MEMORANDUM AND ORDER

This matter is before the Court for review of Plaintiff's First Amended Complaint (Doc. 11), which was timely filed in response to this Court's Order of July 27, 2011 (Doc. 10). Plaintiff was ordered to file the amended complaint to name the Defendants responsible for the retaliatory acts alleged in Count 2 of the original complaint. Plaintiff was also ordered to re-file any exhibits he wished the Court to consider along with his First Amended Complaint. Before this matter can be referred to the Magistrate Judge for further proceedings, the Court must evaluate whether the First Amended Complaint complies with the Court's prior order, and whether the amended allegations survive review pursuant to 28 U.S.C. § 1915A.

Plaintiff's allegations in Count 1 of the First Amended Complaint, against Defendants Colgan, Myers, Lt. Dintelmann, and Schwatz, are sufficient to proceed to the next stage of litigation. However, Plaintiff neglected to file any of the exhibits to which he refers in the First Amended Complaint (Doc. 11, p. 4-6). Should Plaintiff wish the Court to consider these exhibits, he may file them within 14 days of the date of entry of this Order. If the exhibits are not filed within this deadline, Plaintiff must file a proper motion to amend his complaint, pursuant to Federal Rule of Civil Procedure 15(a) or (d) and Local Rule 15.1.*fn1

Turning to Count 2 of the First Amended Complaint, not all of Plaintiff's allegations are adequate to state a retaliation claim against the three new Defendants he names. His original complaint indicated that the acts of retaliation Plaintiff described -- placing him in segregation, destroying or giving away his property, and placing him in a cell with a hostile inmate who took his property -- were taken as a consequence of Plaintiff filing grievances in February 2009 over the denial of access to restroom facilities that was the subject of Count 1. However, the allegations in the First Amended Complaint do not make that connection. Merely stating a legal conclusion that certain acts constitute "retaliation" is not sufficient to make out a constitutional claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (conclusory legal statements are insufficient to state a claim); Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002) (to state a claim for retaliation, a plaintiff must identify the reasons that retaliation has been taken, as well as "the act or acts claimed to have constituted retaliation," so as to put those charged with the retaliation on notice of the claim). To determine whether Plaintiff's retaliation claims merit further review, the Court shall examine each in turn.

Defendant Harris

First, Plaintiff alleges that on August 2, 2010, he was sent to disciplinary segregation (he does not explain why) (Doc. 11, p. 7). When Plaintiff's property was returned after segregation, many items were missing, and his TV and fan were broken. Plaintiff asked Defendant Harris about the property, and Defendant Harris replied, "that's the price you pay if you come to seg" (Doc. 11, p. 7). Plaintiff does not allege any connection between this incident and Plaintiff's earlier grievances over the denial of bathroom access, which he filed soon after February 9, 2009, more than a year before the loss of his property. Moreover, Plaintiff does not allege that the incident involving Defendant Harris was retaliatory in any way. Instead, Plaintiff alleges that Defendant Harris was deliberately indifferent to Plaintiff's complaint over his personal property (Doc. 11, p. 9).

These allegations do not state a cause of action for retaliation. Nor do they state a claim for deliberate indifference or any other constitutional claim. The only constitutional right that might be implicated by these facts is Plaintiff's right, under the Fourteenth Amendment, to be free from deprivations of his property by state actors without due process of law. To state a claim under the due process clause of the Fourteenth Amendment, Plaintiff must establish a deprivation of liberty or property without due process of law; if the state provides an adequate remedy, Plaintiff has no civil rights claim. Hudson v. Palmer, 468 U.S. 517, 530-36 (1984) (availability of damages remedy in state claims court is an adequate, post-deprivation remedy). The Seventh Circuit has found that Illinois provides an adequate post-deprivation remedy in an action for damages in the Illinois Court of Claims. Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999); Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir. 1993); 705 ILL. COMP. STAT. 505/8 (1995).

Accordingly, this portion of the claim does not survive review pursuant to 28 U.S.C. § 1915A, and the claim against Defendant Harris must be dismissed.

Defendant Bradley

Next, Plaintiff alleges that on August 18, 2010, Plaintiff complained to the correctional officer in charge, and to supervisor(s) about his cellmate, who stole commissary items from Plaintiff and continually picked fights with him. Despite his complaints, Plaintiff was placed back into the same cell. Defendant Bradley told Plaintiff that if he had any problems with the cellmate, Plaintiff should fight the cellmate. Plaintiff again fails to allege that this incident occurred in retaliation for the grievances he filed after being denied access to the restroom in February 2009. However, Plaintiff does allege that Defendant Bradley's refusal to move Plaintiff, and Plaintiff's continued placement in the cell he shared with a hostile cellmate, constituted retaliation for the complaints Plaintiff raised over that cell assignment. Such allegations are adequate to state a retaliation claim at the pleadings stage. See Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002) (naming the protected activity and the act of retaliation is all that is necessary to state a claim).

That is not the end of the matter. This incident of alleged retaliation does not appear to arise from the same transaction, occurrence, or series of transactions or occurrences as the events in Count

1. Therefore, it is subject to severance from this action into a separate lawsuit, as shall be discussed further below.

Defendant Urbanek

Finally, Plaintiff alleges in the First Amended Complaint that on May 12, 2010, Defendant Urbanek did not allow Plaintiff to use the inmates' restroom in the law library, and as a result Plaintiff "use[d] the restroom on himself" because he was unable to hold it (Doc. 11, p. 7, 9). Although Plaintiff alleges that this event constituted retaliation, the First Amended Complaint fails to state what protected act Plaintiff engaged in that would have prompted Defendant Urbanek to retaliate against him. Accordingly, Plaintiff fails to state a retaliation claim against Defendant Urbanek. However, for the reasons stated in this Court's order at Doc. 10, Defendant Urbanek's refusal to allow Plaintiff to use the law library restroom despite ...


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