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Francisco Romero, Inmate # R51352 v. Ryan L. Davis

March 26, 2012

FRANCISCO ROMERO, INMATE # R51352, PLAINTIFF,
v.
RYAN L. DAVIS, CHARLES L. PARNELL, TRACY K. LEE, DONALD D. GAETZ, MR. SPILLER, AND T. ANDERSON DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Francisco Romero, an inmate in Menard Correctional Center ("Menard"), brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff is serving a 65-year sentence for murder, 7 years for attempted aggravated arson, 4 years for residential burglary, and 4 years for possession of contraband at a penal institution. 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, the Court finds it appropriate to exercise its authority under § 1915A; this action is subject to summary dismissal.

The Complaint

According to Plaintiff's complaint, Defendant Correctional Officer Davis was working the 2 gallery in North 2 segregation at Menard when he observed a black "do-rag" in Plaintiff's cell. When Plaintiff handed the do-rag to Davis as requested, Plaintiff stated, "That is petty, man" (Doc. 1, p. 4). Davis responded, "since I'm petty, you'll get the ticket." Id. According to the complaint, the do-rag was the property of Plaintiff's cellmate, Pierre Woodard, which was acknowledged by Mr. Woodard in an affidavit (Doc. 1-1, p. 2). Plaintiff claims he was subsequently issued a false and malicious disciplinary ticket by Davis for violation of Rules 308 (Contraband/Unauthorized Property) and 404 (Violation of Rules). The resulting discipline imposed included three months of segregation, demotion to C-grade, and commissary restriction, as well as confiscation of the property. That same day, Plaintiff filed a grievance over the incident, but never received a response. Plaintiff also filed a grievance over the disciplinary action but was later informed that it had not been timely filed. Plaintiff claims due process violations over the alleged mishandling of his attempts to pursue this grievance.

Plaintiff requests compensatory damages and expungement of the disciplinary report from his record.

Discussion

Based on the allegations of the complaint, the Court finds it convenient to divide the pro se action into two counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The ...


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