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Calvin Merritte, R-53322 v. C/O Kessel

September 13, 2012

CALVIN MERRITTE, R-53322, PLAINTIFF,
v.
C/O KESSEL, C/O GANGLOFF, MARC HODGE, C/O J. FREEMAN, C/O TATE, C/O BREENDEN, DEFENDANTS.



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

MEMORANDUM AND ORDER

This matter is before the Court for threshold review of the plaintiff's second amended complaint (Doc.17) which seeks recovery for alleged civil rights violations under 42 U.S.C. § 1983. Plaintiff, who is incarcerated at Lawrence Correctional Center, Sumner, Illinois, asserts that because that he and his former cellmate, Regis Higgins*fn1 filed several grievances against the defendant correctional officers, he has been subject to retaliation and he fears for his safety. He further asserts that Warden Hodge failed to protect the plaintiff when he refused to transfer plaintiff to another institution and otherwise has subjected plaintiff to a risk of harm from other inmates.

Named as defendants are C/O Kessel*fn2 , Mark Hodge (Warden, Lawrence Correctional Center), C/O Gangloff, C/O J. Freeman, C/O Breeden and C/O Tate.

Plaintiff also has filed several motions for injunctive relief: Motion for Preliminary Injunction and Temporary Restraining Order (Doc. 3); Motion for Preliminary Injunction and Temporary Restraining Order (Doc. 8); Amended Motion for Preliminary Injunction and for Restraining Order (Doc. 15); and a companion Motion for Hearing or for Pre-Trial Conference (Doc. 20)

A. THRESHOLD REVIEW

"A provision added to the Judicial Code by the Prison Litigation Reform Act of 1996 requires the district judge to screen prisoner complaints at the earliest opportunity and dismiss the complaint, in whole or part, if. . . it 'fails to state a claim upon which relief can be granted.'" Sanders v. Sheahan, 198 F.3d 626 (7th Cir.1999) (quoting 28 U.S.C. § 1915A(b)(1)). "Factual allegations [in a complaint] must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, there must be "enough facts to state a claim to relief that is plausible on its face." Id.

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." Twombly, 550 U.S. at 570. 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, 556 U.S. 662, 678 (2009).

Although the Court is obligated to accept factual allegations as true, see 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 a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). The Seventh Circuit has directed that 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).

B. DISCUSSION

Section 1983 authorizes a court to grant relief when a party's federally protected rights have been violated by a state or local official or other person acting under color of state law. 42 U.S.C. § 1983. Under the plain language of the statute, § 1983 only applies against those acting under the color of law. In other words, the defendant must be a state actor. See Wilson v. McRae's, Inc., 413 F.3d 692, 693 (7th Cir.2005).

The Seventh Circuit has held that "[A]n act in retaliation for the exercise of a constitutionally protected right is actionable under Section 1983 even if the act, when taken for different reasons, would have been proper." Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir. 1987) (quoted in Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012)). And, a "prisoner has a First Amendment right to make grievances about conditions of confinement." Watkins v. Kasper, 599 F.3d 791, 798 (7th Cir. 2010).

It is helpful for the Court to break down the allegations of the complaint into separate claims. Plaintiff has alleged that defendants Kessel, Gangloff, Tate, J. Freeman and Breeden retaliated against him and threatened him for exercising his First Amendment rights to file grievances against them (Count 1). Plaintiff also alleges that defendant C/O Tate identified him to defendant C/O Breeden as a "stooly," thereby subjecting him to risk of serious harm from other inmates. The Court construes this as a failure to protect claim (Count 2) against defendants C/O Tate and C/O Breeden. Finally, plaintiff alleges that defendant Mark Hodge has refused to transfer plaintiff and has denied his requests for protective measures which were sought because of plaintiff's claimed fear of imminent harm (Count 3).

Upon review of the record, the Court FINDS that plaintiff's complaint is sufficient to withstand threshold review for the claims outlined above. To be held individually liable under ยง1983, plaintiff must allege that each defendant "caused or participated in an alleged constitutional deprivation. . ." Kuhn v. Goodlow, 678 F.3d 552, 555-56 (7th Cir. 2012). Plaintiff has alleged actions by each named correctional officer defendant which would rise to the level of individual liability. With respect to Warden Hodge, plaintiff seeks injunctive relief against him. Warden Hodge would be "responsible for ensuring that any ...


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