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Fredrick Walker, #B34246 v. S.A. Godinez

August 22, 2012

FREDRICK WALKER, #B34246 PLAINTIFF,
v.
S.A. GODINEZ, CHARLES R. PARNELL, DAVID JOHNSON, S. COLLINS, LORI BERNER, K. COWAN, KRISTAL ALLSUP, SHERRY BENTON, RODGER D. COWAN, JEANETTE COWAN, HASEMEYER, OAKLEY, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, Fredrick Walker, currently incarcerated at Menard Correctional Center ("Menard"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983.

The ensuing is a summary of the facts alleged in the complaint. When Plaintiff arrived at Menard, the following Defendants informed gang leaders and other inmates that Plaintiff was a snitch and a rapist: Charles Parnell, David T. Johnson, S. Collins, Lori Berner, K. Cowan, Kristal Allsup, Jeanette Cowan, Oakley and Hasemeyer. As a result, Plaintiff has been beaten several times and suffered cuts and bruises. Plaintiff then requested protective custody, but Defendant Sherry Benton denied Plaintiff's request. Defendants wrote Plaintiff a disciplinary report for fighting as a means to "cover up the fact that he had been denied protective custody[.]" Plaintiff was disciplined and taken to segregation for "defending himself" even though Plaintiff was not the aggressor.

It is against this backdrop of facts that Plaintiff then goes on to assert eight hand-written pages of allegations specific to each Defendant. The Court is mindful it must construe a pro se plaintiff's complaint liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

First, Plaintiff states an Eighth Amendment failure to protect claim against two Defendants: Godinez and Benton (Count One). Both Godinez and Benton knew about the assaults on Plaintiff, but knowingly and intentionally denied Plaintiff's request for protective custody.

Plaintiff, however, fails to state a claim against Defendant Roger Cowan. Plaintiff states irrelevant facts followed by an abstract recitation that Cowan is "intentionally and knowingly placing Plaintiff in danger of being assaulted." Courts "should not accept as adequate abstract recitations of the elements . . . ." Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Defendant Cowan is dismissed from this case with prejudice.

Next, is Plaintiff's claim that Defendants Parnell, Johnson, Collins, and Berner wrote false information on incident reports. Plaintiff also asserts that Defendant K. Cowan directed Collins and Berner to write the false information on the incident report. The false information painted Plaintiff as the aggressor and instigator of fights, rather than a victim of assault. The falsifying of internal prison documents does not implicate a federal claim. To the extent Plaintiff asserts a retaliation claim against these Defendants-Plaintiff fails to allege sufficient facts to state a claim for relief plausible on its face A claim for retaliation requires the retaliation to be done in response to Plaintiff's exercise of a constitutionally protected freedom. See McDonald v. Hall, 610 F.2d 16 (7th Cir. 1979). These Defendants are dismissed with prejudice.

Third, Plaintiff states Defendant Allsup deliberately lost grievances she received from Plaintiff to prevent Plaintiff from redressing his grievances. Here, Plaintiff has stated a Fourteenth Amendment due process claim for deprivation of property (Count Two).

Finally, Plaintiff claims that Defendants Jeanette Cowan, Hasemeyer, and Oakley are intentionally denying Plaintiff his right to redress grievances. Plaintiff's primary concern here seems to be that his incoming and outgoing mail is being "flagged". To the extent Plaintiff is attempting to state a claim about Menard's grievance procedure, it is dismissed with prejudice. "[A] state's inmate grievance procedures do not give rise to a liberty interest protected by the Due Process Clause." Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1995). The failure of state prison officials to follow their own procedures does not, of itself, violate the Constitution. Maust v. Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir. 1982). These three Defendants are dismissed with prejudice.

PENDING MOTIONS

Plaintiff has filed a "Judicial Notice" and request to include four new defendants in this case (Doc. 17). The Court construes this document as a motion to file an amended complaint. The motion (Doc. 17) is DENIED. Plaintiff has also filed a motion for status (Doc. 30). The motion for status (Doc. 30) is DENIED. The Clerk of the Court is DIRECTED to mail a copy of this Order along with a copy of the docket sheet to Plaintiff. Plaintiff has filed two motions seeking a preliminary injunction (Docs. 11, 29). These two motions will be set for a video conference hearing in an order to follow.

DISPOSITION

IT ORDERED that the Clerk of Court shall prepare for Defendants GODINEZ, BENTON, and ALLSUP : (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and

(2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the complaint, and this Memorandum and Order to Defendant's place of employment as identified by Plaintiff. If Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to effect formal service on Defendants, and the Court will require ...


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