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Gerald J. Hill, Inmate #34382-044 v. W.A. Sherrod

March 9, 2012

GERALD J. HILL, INMATE #34382-044, PLAINTIFF,
v.
W.A. SHERROD, CAPTAIN COOPER, COUNSELOR NUDECK, AND J. RARDIN,
DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Gerald J. Hill filed this action while he was an inmate in the United States Penitentiary at Marion, Illinois ("Marion"), seeking compensation for personal injuries he sustained while he was housed in the Federal Correctional Institution at Greenville, Illinois ("Greenville"). According to the electronic docket for Plaintiff's criminal case, he is now on supervised release after pleading guilty and serving a 60-month sentence for possession of a firearm in furtherance of a drug trafficking crime.*fn1

On the complaint form used by Plaintiff, he was given the choice to label the pro se action either as a civil rights complaint under 42 U.S.C § 1983 against state defendants; a Bivens action against federal defendants (see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)); or "Other" (Doc. 1, p. 1). He checked both the § 1983 and Bivens choices, and added "Pendant Jurisdiction" in the "Other" category. The Clerk of Court labeled the action as a Bivens claim because Plaintiff was a federal inmate at the time of filing. However, the allegations in the complaint, as well as Plaintiff's exhibits, indicate that his intention was to bring an action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §1346, 2671-2680 (See Doc. 1, pp. 3, 6; Doc. 1-1, pp. 7-8). Therefore, the Court shall review the complaint as an FTCA claim.

This Court granted Plaintiff's request for leave to proceed in forma pauperis, and his initial partial filing fee has been received. 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). Further, 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 that Plaintiff's claim should receive further consideration.

The Complaint

Plaintiff alleges that during his incarceration in Greenville, he was housed in an eight-man cell that was formerly a television room but had been converted into temporary living quarters. He claims that the policies of the Bureau of Prisons ("BOP") limit the use of these eight-man cells to temporary housing only. However, prison officials continued to use the unit for permanent housing of inmates, contrary to BOP policy and in spite of the lack of security measures such as video surveillance, adequate lighting or adequate ...


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