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Richard Allen, No. 06272-030 v. United States of America

November 16, 2011


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


Plaintiff Richard Allen, an inmate in the United States Penitentiary in Marion, Illinois, brings this action for alleged violations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). 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.

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 it appropriate to exercise its authority under § 1915A and shall dismiss this action.

The Complaint

Plaintiff was charged with misconduct on November 14, 2009, after a dispute with a prison staff member in the prison dining room. Plaintiff was on his job assignment wiping tables. He allegedly tore some strings off a rag and threw them on the floor (Doc. 1-1, p. 5). He was told to pick up his mess. After initially telling the staff member he would clean up after himself, Plaintiff later told the staff member he decided not to pick up the strings or wipe the tables.

Plaintiff was charged with the infractions of 306-Refusing to Work, and 311-Failing to Perform Work as Instructed, under Bureau of Prisons (BOP) regulations. A disciplinary hearing was held on November 16, 2009 (Doc. 1-1, p. 4). Plaintiff submitted a written statement in his defense, which he has reproduced and attached as Exhibit F to his complaint (Doc. 1-1, p. 7-9). The hearing committee determined that Plaintiff had not violated sections 306 and 311, and released him from detention. However, on the basis of Plaintiff's written statement, the committee found he had violated a different section, 307-Refusing an Order (Doc. 1-1, p. 10). As punishment, Plaintiff was given fifteen days commissary restriction.

Plaintiff claims that his right to due process was violated when the hearing committee found him guilty of an infraction with which he was never charged. He asserts he was never given a hearing on the charge of 307-Refusing an Order.

Plaintiff also mentions a denial of transfer relating to Complaint No. 11-1246 filed in the United States Court of Appeals, Seventh Circuit. A review of the appellate court docket sheet and documents filed there shows that prior to filing the instant case, Plaintiff sought to have the Seventh Circuit review the same disciplinary action he complains of here.*fn1 Allen v. United States, No. 11-1246 (7th Cir. filed Jan. 28, 2011). The appellate court dismissed Plaintiff's case on February 16, 2011, for lack of jurisdiction, and denied ...

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