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Larry E. Starks v. Mitchel

September 10, 2012

LARRY E. STARKS, PLAINTIFF,
v.
MITCHEL, ROSS, AND JAMES N. CROSS, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Larry E. Starks, a federal inmate at the Federal Correctional Institution in Greenville, Illinois, brings this action for deprivations of his constitutional rights pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Before the Court is Plaintiff's motion for leave to amend his complaint and a proposed amended complaint (Doc. 8). Plaintiff's motion for leave to amend is GRANTED. The Clerk of Court is directed to file Plaintiff's proposed amended complaint.

The Court will conduct its preliminary review of the amended complaint under 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 upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of the 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." Brooks, 578 F.3d at 581. At the same time, however, the factual allegations of a pro se complaint are to be construed liberally. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.2009).

Upon careful review of the amended complaint, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.

The Amended Complaint

In February 2011, Plaintiff was assigned to work in the kitchen at the Federal Correctional Institution in Greenville, Illinois. He started out assigned to the dishroom, then was transferred to the serving line. Soon after, he was reporting to work and walked past the food supervisor, Mr. Mitchel. Mitchel told the food manager, Mr. Ross, "Give him the shit jobs! He likes raping our women!" Plaintiff had been convicted in 1983 of sexual abuse of an adult white female.

So Ross began reassigning Plaintiff from the serving line to the dishroom whenever Ross was managing the kitchen. Plaintiff did not respond to this harassment, and Ross be-came frustrated. In October 2011, as Plaintiff was approaching the serving line and getting ready to serve, Ross looked at Plaintiff and pushed a food cart at him at a high rate of speed. Plaintiff barely avoided the impact of the cart. The incident was videorecorded, and Plaintiff filed a grievance. Prison officials told him it was a serious matter and under investigation, but no one talked to Plaintiff after that. Since then Plaintiff has continued working under Ross's supervision. He believes Ross is still biased against him. After working in the kitchen over a year, Plaintiff is still at grade four, even though has not been disciplined since his incarceration.

Discussion

The Court divides this pro se action into two counts based on Plaintiff's allegations. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed. The designation of ...


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