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Frank E. Dorko, #S-11805 v. Salvador A. Godinez

October 23, 2012

FRANK E. DORKO, #S-11805, PLAINTIFF,
v.
SALVADOR A. GODINEZ, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

This matter is before the Court for review of Plaintiff's First Amended Complaint (Doc. 16) pursuant to 28 U.S.C. § 1915A. The amended complaint was filed on September 25, 2012, after the Court dismissed a co-Plaintiff (John B. Ferryman) from the action. Plaintiff is currently incarcerated at Stateville Correctional Center ("Stateville"), but his claims arose while he was confined at Lawrence Correctional Center ("Lawrence"). He filed this civil rights action under 42 U.S.C. § 1983 on July 30, 2012, alleging violations of his constitutional rights.

In the First Amended Complaint, Plaintiff brings numerous claims against a total of 45 Defendants (six of whom are John Does). These claims include: (1) inadequate prison diet; (2) deliberate indifference to medical problems caused by the deficient diet; (3) unsanitary and unconstitutional conditions of confinement; (4) interference with legal, privileged, and general mail; (5) retaliation for filing grievances; (6) denial of access to the courts; (7) retaliation for filing the instant lawsuit; and (8) failure to respond to grievances.

More specifically, Plaintiff alleges that since his arrival at Lawrence (where he was held in segregation since February 29, 2012), he has been fed a nutritionally inadequate diet that does not contain enough calories, vitamins, or nutrients to properly maintain his health (Doc. 16, pp. 17-18). As a result of receiving "half rations," Plaintiff has lost over 30 pounds, and suffers from daily diarrhea, headaches, stomach cramps, lack of energy, and emotional/mental stress. Defendants Kimmel (a nurse) and Martin (a doctor) failed to provide any treatment for his weight loss or diarrhea (Doc. 16, pp. 23-24).

The conditions in his segregation cell include the failure to provide any stool upon which to sit while using the desk to eat or write. Plaintiff must stand while using the desk, and he suffers from muscle cramps in his legs and back, and pain in his feet and ankles when he stands for long periods of time (Doc. 16, p. 19). Further, he was not allowed to purchase soap or toothpaste and none was issued to him for approximately two months after his arrival in segregation. Id. As a segregation inmate, he was not permitted to possess a razor, and instead was given a product called "magic shave." Using this product caused burns, skin loss, pain, and bleeding (Doc. 16, p. 20). No general library services were provided due to budget cuts (Doc. 16, pp. 20-21). Finally, the cell was infested with biting insects (Doc. 16, p. 21). Plaintiff has been placed in punitive segregation for a period of at least 240 days (Doc. 16, p. 26).

Defendant Cecil (the mailroom supervisor) has on numerous occasions opened and returned Plaintiff's outgoing mail to an attorney (Doc. 16, pp. 24-25). Additionally, she improperly charged him for return receipt fees, and opened a "privileged" incoming letter from Illinois Department of Corrections ("IDOC") Regional Director Ty Bates. Delivery of Plaintiff's incoming subscription magazines was delayed when they were intercepted by prison staff (Doc. 16, p. 25).

In retaliation for Plaintiff's grievances and complaints, Defendant Musgrave (law library clerk) refused to copy Plaintiff's legal documents, "lost" documents given her for copying, charged Plaintiff for copies not made, and assaulted Plaintiff by trying to close the food slot on his arm and hand (Doc. 16, pp. 21-23). She also ignored his requests for legal supplies (e.g. envelopes). Defendant Jokisch denied his requests for copies of documents in his master file. As a result of Defendant Musgrave's failure to provide law library services, Plaintiff lost an appeal in his state criminal case.

In retaliation for Plaintiff bringing the instant lawsuit, Plaintiff was written up for disciplinary infractions on September 7 and 8, 2012 (Doc. 16, p. 26). He was not given advance notice of the charge against him on at least one ticket (because it was unreadable), and his request for a witness was denied. He was punished with additional months in segregation, presumably under the conditions described above.

In reference to Plaintiff's many grievances, Defendants Hodge (warden) and Goins (adjustment committee chair) failed to respond to Plaintiff's requests for restoration of his audio/video privileges, and for a segregation reduction (Doc. 16, p. 21). Defendants Hodge, Stafford, Strubhart, and Bates ignored Plaintiff's requests to press criminal charges against Defendant Musgrave for slamming the food slot on him (Doc. 16, p. 23). Grievance officers (Defendants John Doe, McDonald, Erickson, Downen, and Risse) have failed to answer Plaintiff's grievances in a timely manner (Doc. 16, p. 22).

Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable federal cause of action for the following claims.

Count 1: against Defendants Densmore, Hodge, Strubhart, Storm, and Unknown (John Doe) Dietary Supervisors for failure to provide Plaintiff with a nutritionally adequate diet;

Count 2: against Defendants Kimmel and Martin for deliberate indifference to medical needs related to the deficient diet;

Count 3: against Defendants Ochs, Shidler, Strubhart, and Hodge for failing to remedy the following cell conditions: lack of a stool, denial of soap and toothpaste, and insect infestation;

Count 4: against Defendant Cecil for interference with legal mail;

Count 5: against Defendants Musgrave and Jokisch for retaliation (denial of law library services and denial of copies from master file, respectively);

Count 6: against Defendant Musgrave for denial of access to the courts;

Count 7: against Defendants Shidler, Tate, Brown, Kelsey,*fn1 and Vaughn for retaliation (issuing false disciplinary tickets) in September 2012; and

Count 8: against Defendants Shidler, Tate, Brown, Kelsey, Vaughn, Sayer, and Goins, for deprivation of a liberty interest without due process in relation to the September 2012 disciplinary tickets.

However, several of Plaintiff's claims (and a number of Defendants) shall be dismissed pursuant to ยง 1915A. Furthermore, the claims in Counts 4, 5, and 6 must be severed into two separate cases, as they involve incidents and parties that are distinct and unrelated to the claims in Counts 1, 2, 3, 7, and 8. See George v. Smith, 507 F.3d 605, 607 ...


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