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Moss, #B-18364 v. Lt. Walters and John Doe Tact Team Members

September 30, 2011


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


Carl Moss, an inmate in Shawnee Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on an incident that occurred while he was housed in Lawrence Correctional Center. Moss ("Plaintiff") is serving a 60-year sentence for aggravated criminal sexual assault. 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.

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, in reviewing the complaint, is obligated to accept factual allegations as true, certain 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. However, the factual allegations of a pro se complaint must be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

Upon careful review of the complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A to dismiss this action.

The Complaint

At around 9:00pm on July 29, 2010, while Plaintiff and his fellow inmates in the R-7 Cell House were locked down for the night, the prison Tact Team (Tactical Team), under the command of Defendant Walters, exploded riot control ordnance outside the building (Doc. 1, p. 2). There was no disturbance in the cell house at the time. After hearing the explosions, Plaintiff experienced a "noxious gagging stench" in his cell, and soon was retching, gagging, and unable to breathe (Doc. 1, p. 5). Eventually, Plaintiff and all other inmates of the cell house were taken out of their cells and instructed to abandon the building. They were taken to the chow hall. After sitting in the chow hall for about an hour, the inmates were told that a shift in wind direction caused the gas from a training exercise to enter the cell house.

Plaintiff claims that the gas exposure was "life threatening," and that the substance was not mace, pepper spray or tear gas, which he had previously experienced (Doc. 1, p. 5). He asserts there was no penological reason for the "cruel and sadistic exercise/experiment" (Doc. 1, p. 2). Plaintiff attaches several exhibits to his complaint in which prison officials state that during a tactical drill outside the perimeter fence, "OC gas" was discharged and accidentally entered the housing unit (Doc. 1, p. 6-8). Claiming violations of this rights under the Eighth Amendment to the United States Constitution, Plaintiff seeks compensatory and punitive damages, as well as declaratory and injunctive relief.


In a case involving conditions of confinement in a prison, two elements are required to establish a violation of the Eighth Amendment's cruel and unusual punishment clause. First, an objective element requires a showing that the conditions deny the inmate "the minimal civilized measure of life's necessities," creating an excessive risk to the inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The second requirement is a subjective element -- establishing a defendant's culpable state of mind. Id. To state a conditions of confinement claim upon which relief can be granted, a plaintiff must allege facts that, if true, would satisfy the objective ...

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