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Ervin W. Thomas v. Warden Jerry Buscher

June 5, 2012

ERVIN W. THOMAS PLAINTIFF,
v.
WARDEN JERRY BUSCHER, MARLA MARLEY, AND SUSAN G. SUGGS, DEFENDANTS,



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED

3:12-cv-03075-SEM-BGC # 12 Page 1 of 7

Tuesday, 05 June, 2012 02:02:00 PM

Clerk, U.S. District Court, ILCD

OPINION

Plaintiff, proceeding pro se and currently incarcerated in Green Bay Correctional Institution, pursues claims arising from the alleged destruction of his property by Taylorville Correctional Center staff. The case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A.

LEGAL STANDARD

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).

ALLEGATIONS

In March, 2010, Plaintiff was incarcerated in Taylorville Correctional Center. On June 3, 2010, Plaintiff was transported to the temporary custody of Wisconsin authorities pursuant to an interstate agreement. Plaintiff's speedy trial time on the Wisconsin charges elapsed on September 10, 2010 with no resolution. Plaintiff therefore wrote to Defendant Suggs at Taylorville Correctional Center, asking to be returned to Taylorville Correctional Center. Receiving no response, Plaintiff wrote to Suggs again, enclosing a money order and directing that his personal property be sent to him or to his cousin. Plaintiff received a response stating that he should have arranged for his property to be mailed out or picked up within 30 days of his release. However, Plaintiff had not been released from IDOC custody yet; he was only on a temporary writ to Wisconsin. The letter also presumably informed Plaintiff that his property had been destroyed, because he asserts that "whether my property was destroyed intentionally or by mistake is of no consequence, when in fact my property has been destroyed (two family photo albums of which cannot be replaced because most of my family on those photos are now deceased." (Complaint, p. 7). He seeks money damages for the loss of his property.

According to the IDOC website, Plaintiff was paroled from IDOC custody on December 8, 2010. www.illinois.gov (last visited 6/1/12).

He is currently in the custody of the Wisconsin Department of Corrections. ...


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