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Burt Wenzel, #S-08275 v. Lee Ryker

November 2, 2011

BURT WENZEL, #S-08275 PLAINTIFF,
v.
LEE RYKER, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate currently in the Pontiac Correctional Center, was at times relevant to this action housed at the Lawrence Correctional Center, and the Shawnee Correctional Center. Plaintiff brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides, in pertinent part:

(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). Upon careful review of the complaint and any supporting exhibits, the Court finds that some of the claims in this complaint are subject to severance.

Facts:

The following version of the facts of this case is gleaned from Plaintiff's amended complaint (Doc. 25). On March 1, 2011, Defendant Ryker, warden of Lawrence Correctional Center, failed to protect Plaintiff from harm. Plaintiff warned Defendant Ryker that, because he has "disabling psychological symptoms" he was at a risk of harm to himself unless he was placed in a single-man cell. Defendant Ryker did not respond to this request, and Plaintiff was placed in a double cell. Defendant John Doe Chief Administrative Officer of Lawrence also failed to protect Plaintiff when Plaintiff was placed in the double cell despite his mental health needs, which caused him to suffer physical and mental harm (Plaintiff does not go into details about this injury in his complaint).

In a separate incident, Defendant Ryker failed to honor a court order from Richland County when he did not present Plaintiff to the court. As a result, motions in one or more of Plaintiff's pending case(s) were dismissed.

In October 2011, Defendant Wendy, a nurse at Shawnee Correctional Center, violated Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff was held in a mental health cell when he urinated on himself. He informed Defendant Wendy that he needed a change of clothing, access to laundry, and a washcloth. These requests were denied. Plaintiff also made Defendant Longsdon aware of the situation, to no avail. Plaintiff remained in his urine-soaked clothing for three days. During that time, Defendant Vaughn came to Plaintiff's cell, pointing and making remarks about Plaintiff, often in front of other inmates.

At an unspecified time, John Doe Chief Administrative Officer of Pontiac was part of an adjustment committee convened to address an unspecified charge against Plaintiff. That committee deprived Plaintiff of a fair disciplinary hearing, violating his right to due process. Defendant Chief Administrative Officer of Pontiac also failed to act after being informed that Pontiac staff was retaliating against Plaintiff by denying his access to the law library and legal mail.

At another unspecified time, Defendant Lemke, assistant warden at Pontiac, "caused great harm to [P]laintiff by subjecting [P]laintiff to cruel punishment by punishing [P]laintiff while he was under a disabling psychological state of mind." (Doc. 25, p. 5).

On September 3, 2011, John Doe Pontiac Grievance Officer failed to protect Plaintiff from another inmate when, after Plaintiff informed this Defendant that another inmate was throwing feces ...


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