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Regis Higgins, R-66358 v. C/O Kessel

September 14, 2012

REGIS HIGGINS, R-66358, PLAINTIFF,
v.
C/O KESSEL, C/O GANGLOFF, MARC HODGE,, 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 complaint (Doc.2) alleging 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, Calvin Merritte*fn1 filed several grievances against the defendant correctional officers, he has been subject to retaliation for filing grievances and he fears for his safety. Named as defendants are C/O Kessel*fn2 , C/O Gangloff and Mark Hodge (Warden, Lawrence Correctional Center).

Plaintiff has filed a separate motion for preliminary injunction (Doc. 3) asserting a reasonable likelihood of success on the merits, no adequate remedy at law, and a substantial threat of harm if he is not transferred from Lawrence Correctional Center and to enjoin or restrain defendants Kessel and Gangloff from "being around" plaintiff, and from further threatening his safety.

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 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 and Gangloff retaliated against Plaintiff and threatened him for exercising his First Amendment rights to file a grievance against them (Count 1). Plaintiff also alleges that defendant Warden Mark Hodge has not protected him and has denied his request for transfer which he seeks based on fear of imminent harm (Count 2).

Under § 1983 a plaintiff must show the defendant's personal involvement or participation, or direct responsibility for the conditions of which he complains. In this case, plaintiff has sufficiently alleged that defendants Kessel and Gangloff personally acted in a manner which could give rise to a §1983 violation. In addition, with respect to defendant Hodge because plaintiff seeks injunctive relief, as the Warden at Lawrence Correctional Center, defendant Hodge, would be "responsible for ensuring that any injunctive relief is carried out." Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011), therefore, plaintiff's claim against Hodge also survives threshold review.

C. PRELIMINARY INJUNCTION

In a preliminary injunction proceeding, a plaintiff has the threshold burden to show some likelihood of success on the merits and that irreparable harm will result if the requested relief is denied. In re Forty--Eight Insulations, Inc., 115 F.3d 1294, 1300 (7th Cir.1997). If the plaintiff succeeds in his attempt for a preliminary injunction, the imminent danger question will be temporarily resolved pending trial. However, where the plaintiff fails to show some likelihood of success on the ...


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