The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
Wednesday, 23 November, 2011 09:29:02 AM
Clerk, U.S. District Court, ILCD
Plaintiff, proceeding pro se and currently incarcerated in Vandalia Correctional Center, pursues claims arising from IDOC's alleged illegal surcharge on commissary items. The case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A.
The Court is required by § 1915A to review a Complaint filed by a prisoner against a governmental entity or officer and, through such process, to identify cognizable claims, dismissing any claim that is "frivolous, malicious, or fails to state a claim upon which relief may be granted." A hearing is held if necessary to assist the Court in this review, but, in this case, the Court concludes that no hearing is necessary. The Complaint and its attachments are clear enough on their own for this Court to perform its merit review of Plaintiff's Complaint.
The review standard under § 1915A is the same as the notice pleading standard under Federal Rule of Civil Procedure 12(b)(6). Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). To state a claim, the allegations must set forth a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Factual allegations must give enough detail to give "'fair notice of what the . . . claim is and the grounds upon which it rests.'" EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(add'l citation omitted). The factual "allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" Id., quoting Bell Atlantic, 550 U.S. at 555. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged . . . . Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic, 550 U.S. at 555-56. However, pro se pleadings are liberally construed when applying this standard. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).
Plaintiff alleges that Illinois statutory law prohibits Illinois prisons from marking up commissary items more than 25% for non-tobacco products and 35% for tobacco products. Plaintiff alleges that the prisons are exceeding this limit, thus violating his constitutional rights.
This claim was addressed by the Seventh Circuit in Tenny v. Blagojevich, 659 F.3d 578 (7th Cir. 2011). State prisoners in Tenny challenged, on procedural due process grounds, the IDOC's imposition of additional mark-ups above the state statutory caps. See 730 ILCS 5/3-7-2a (establishing caps). The district court in Tenny had dismissed the case at the screening stage, reasoning that the prisoners had no constitutionally protected interest in purchasing commissary items or in purchasing them at a given price.
The Seventh Circuit affirmed, but on a different ground. The Seventh Circuit reasoned that, even if the state statute created a constitutionally protected property interest, the deprivation suffered was the kind of "random and unauthorized" deprivation for which no federal due process claim exists if an adequate post-deprivation state remedy is available. 659 F.3d at 582, quoting Parratt v. Taylor, 451 U.S. 527, 541 (1981). The plaintiffs in Tenny had not sufficiently alleged that state remedies were inadequate. The Seventh Circuit concluded:
Put another way, this case is really about a substantive violation of Illinois law, not about the procedures required before the plaintiffs can be deprived of a property interest. The plaintiffs' grievance is about what was done (the mark-up in excess of 25%), not the procedures followed to do it. And that is exactly what this court, and the Supreme Court, have worried "would make of the Fourteenth Amendment a font of tort law," or in this case administrative law, "to be superimposed upon whatever systems may already be administered by the States." Easter House, 910 F.2d at 1396 (quoting Parratt, 451 U.S. at 544, 101 S.Ct. 1908). Federal courts do not sit to compel a state's compliance with its own law. . . . Even assuming the plaintiffs were deprived of a property interest created ...