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Audie C. Murphy (N-74595 v. Hardy

November 13, 2012

AUDIE C. MURPHY (N-74595)
v.
HARDY, ET AL.



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Amy J. St. Eve than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

Plaintiff has paid the filing fee. Summonses, however, shall not issue. The complaint is dismissed pursuant to 28 U.S.C. § 1915A for failure to state a claim upon which relief may be granted. The case is terminated. This dismissal counts as one of Plaintiff's three allotted dismissals under 28 U.S.C. § 1915(g). Any other pending motions are denied as moot.

O[For further details see text below.] Docketing to mail notices.

STATEMENT

Plaintiff, Audie C. Murphy, a prisoner at Stateville Correctional Center, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has paid the filing fee.

Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt review of the complaint.

The following summary of Plaintiff's allegations are taken from his complaint and the exhibits attached to his complaint. See Northern Ind. Gun & Outdoor Show, Inc. v. City of South Bend, 163 F.3d 449, 454 (7th Cir. 1998) (when a written instrument contradicts allegations in the complaint to which it is attached, the exhibit trumps the allegations); see also, Thompson v. Illinois Dep't of Professional Reg., 300 F.3d 750, 754 (7th Cir. 2002) (if a plaintiff attaches a document to his complaint and relies upon that document to form the basis of a claim, dismissal is appropriate if the document negates the claim).

Plaintiff alleges that a permanent visitation stop order (stop order) was put into place prohibiting LaVerne Huggins from visiting Plaintiff at prison. Exhibit 2 of Plaintiff's complaint indicates that the stop order was imposed against Huggins in May 1997, while Plaintiff was incarcerated at Menard Correctional Center. The exhibit states that Huggins had four visit restrictions under the name Huggins and also a restriction because she passed contraband in the visiting room while using an alias. In August 2006, Plaintiff wrote Menard Assistant Warden Ramos requesting that Huggins visitation restriction be lifted. Ramos informed Plaintiff that the policy required that the restricted visitor/offender request the lifting of the restriction. Subsequently, Huggins requested that he lift the visitation restriction. In a January 2007 letter, Ramos denied Huggins' request, citing her repeated visiting offenses and the serious nature of those offenses. The letter also indicated that she was eligible for a review of the restriction on a yearly basis from the date of the restriction.

At some point, Plaintiff was transferred to Stateville Correctional Center. In September 2008, Stateville Assistant Warden Reed granted Plaintiff and Huggins a one-time visit. On November 18, 2008, Reed sent Huggins a letter informing her that the stop order would be lifted effective on that date. At some future date, however, Stateville again denied Huggins visitation with Plaintiff.

Plaintiff spoke with Stateville Assistant Warden Pfister in late 2010 about the stop order (Reed was no longer at Stateville). Pfister informed Plaintiff that Reed had allowed a one-time visit and that the stop order was still in effect. Subsequently, Huggins sent Pfister a request to have the stop order be rescinded. On November 25, 2010, Pfister denied the request, informing Huggins that because the stop order was put into place at Menard, she must make her request to Menard and that she could not visit anyone at Stateville until Menard rescinded the stop order.

Subsequently, Plaintiff sent Stateville Warden Coleman a copy of Reed's November 18, 2008 letter, informing Huggins that Reed had rescinded the stop order. Coleman informed Plaintiff that Huggins needed to have Menard rescind the stop order because it was the facility that issued the stop order.

In August 2011, Plaintiff requested restoration of her visiting privileges form Menard. In a September 28, 2011 response, Menard Assistant Warden Harrington denied the request, citing Huggins multiple violations and because she was also barred at another institution under an alias. Because she was "barred on multiple occasions under multiple aliases," her request was denied. She was also informed that she was entitled to have the restriction reviewed on an annual basis.

Plaintiff first alleges that the restriction on Huggins' visitation violates his Fifth Amendment right of double jeopardy. The Double Jeopardy Clause, applicable to the states by the Fourteenth Amendment, protects against a second prosecution for the same offense and multiple punishments for the same offense. See Breed v. Jones, 421 U.S. 519, 530-31 (1975). Its scope, however, is limited to criminal prosecutions. Id. Plaintiff is not being prosecuted a second time for the same criminal offense and he is not receiving ...


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