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Eddie J. Sykes, #R-22570 v. Magid Fahim

November 26, 2012


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


This matter comes before the Court for review of Plaintiff's First Amended Complaint (Doc. 9), pursuant to 28 U.S.C. § 1915A. Plaintiff is currently incarcerated at Menard Correctional Center ("Menard"), serving a 25-year sentence for murder. On August 15, 2012, the Court struck Plaintiff's original 155-page hand-written civil rights complaint (Doc. 1), which named 55 individual Defendants as well as three unknown parties. Plaintiff was directed to file an amended complaint in compliance with Federal Rule of Civil Procedure 8 (Doc. 5). Plaintiff's First Amended Complaint includes a 26-page statement of his claim (Doc. 9-1, pp. 4-20; Doc. 9-2, pp. 1-9), as well as multiple exhibits (most of which are not necessary at this stage of the litigation).

The amended complaint alleges that twenty-five named Defendants infringed upon Plaintiff's civil rights under color of state law, in violation of 42 U.S.C. § 1983, by failing to respond to his written grievances, retaliating against him by issuing false disciplinary reports, interfering with his mail, and refusing to approve a phone conference with an attorney.

Specifically, Plaintiff lists numerous grievances he filed starting in November 2010 and continuing into 2012, and complains that Defendants Warden Rednour, Counselor Price, Counselor Kristal Allsup, Grievance Officer Jennette Cowan, Counselor Barbara Mueller, Counselor Susan Hill, Grievance Officer Tracy Harrington, Investigator Thomas, Nursing Supervisor Janette Kinkade, Warden Michale Atchison, A/S Warden Harrington, Grievance Officer Oakley, and Counselor Shellie Cartwright either refused to treat his grievances as emergencies, failed to respond to them, rejected his grievances as untimely, or refused to look into the status of his grievances (Doc. 9-1, pp. 4-20; Doc. 9-2, p. 1). Defendant Hill made racist comments to him when he asked her about the status of his grievances (Doc. 9-1, p. 11). Plaintiff also mentions several other individuals who were involved in either responding to his grievances or reviewing the responses of other Defendants: Illinois Department of Corrections ("IDOC") Director Godinez, Administrative Review Board officials Sarah Johnson and Terri Anderson, Counselor Angela Grott, and Nursing Supervisor Angela Crain.*fn1 However, he did not include these five officials among the named Defendants in either the original or amended complaint.

For the most part, Plaintiff does not describe the subjects of these numerous grievances, referring to them only by date. Some grievances involved health care, but the complaint does not disclose the problems that prompted Plaintiff to invoke the grievance procedure (See Doc. 9-1, pp. 9, 12, 19-20). He also mentions an "issue that happened on 9-10-11" involving a ticket written on him by Defendant Officer Baker, but gives no further substantive information (Doc. 9-1, p. 15). Plaintiff summarizes each grievance-related claim by stating that his grievances went "unanswer[ed] and unavailable" and/or that the Defendants interfered with his attempts to use the government for a redress of grievances.

Plaintiff gives more detail on only one grievance. On February 22, 2011, he was "set up discrimination [sic]" by Defendants Counselor Allsup and Officer Miller. After Plaintiff filed a grievance against Defendant Allsup for sexual harassment, she wrote him a disciplinary ticket for sexual misconduct, intimidation, and disobeying a direct order. Plaintiff was punished with six months in segregation, as well as six months C-grade and commissary restriction (Doc. 9-1, p. 6).

Plaintiff further claims that unnamed mailroom officers have interfered with his outgoing legal mail by returning to him a properly-addressed envelope for the John Howard Association, claiming it bore an incorrect address; by removing copies of grievances from an envelope he addressed to the Uptown People's Law Center; and by returning other outgoing legal mail to him for insufficient funds (Doc. 9-2, pp. 1-3). Personal letters to Plaintiff's family were also not mailed out. Defendant Officer Todd Cowan refused to deliver some of Plaintiff's incoming mail, and purposely gave some of it to other inmates (Doc. 9-2, p. 4).

Defendant Legal Mail Officer Shel Stillwell Davis failed to timely deliver an incoming legal document for another pending court case. Plaintiff learned during a deposition that a request for production had been sent to him by opposing counsel on October 20, 2011, but he did not receive this document until December 2, 2011 (Doc. 9-2, pp. 4-5). When Plaintiff complained to Defendant Davis and filed a grievance against her, she "verbally assaulted" him and then, in retaliation for his complaint, wrote a disciplinary ticket against him for sexual misconduct (Doc. 9-2, pp. 6-7).

Defendants Timothy Veath and Jason Vasquez conducted the hearing on this disciplinary charge. Plaintiff requested to have his cellmate called as a witness to his encounter with Defendant Davis, but Defendants Veath and Vasquez refused (Doc. 9-2, pp. 6-7). They found Plaintiff guilty, and he was punished with one year of segregation, C-grade, and commissary restriction (Doc. 9-7, p. 9).

Finally, in April 2012, Plaintiff received a letter from an attorney (Ms. Argentine of Seyfarth Shaw) proposing to conduct a telephone conference with him regarding medical treatment at Menard, evidently in preparation for a lawsuit (Doc. 9-12, p. 6). Plaintiff sent his written confirmation that he wanted to participate in this call to Defendants Atchison, Betsy Spiller (whom Plaintiff did not list among the enumerated Defendants in Doc. 9, pp. 1-6), Hill, and Cartwright. He also wrote back to Attorney Argentine on April 23, 2012, confirming his interest. None of the Defendants responded to Plaintiff's request, so the telephone conference did not take place (Doc. 9-2, pp. 8-9). However, on April 28, 2012, Plaintiff had an in-person conference at Menard with Attorney Alan Mills from the Uptown People's Law Center regarding the same matter.

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 at this stage of the litigation, Plaintiff has articulated a colorable federal cause of action against Defendants Todd Cowan, Shel Stilwell Davis, and the Unknown Mailroom Officers for interference with legal and personal mail (Count 1); against Defendant Davis for retaliation (issuing a false disciplinary ticket on December 2, 2011) (Count 2); and against Defendants Davis, Timothy Veath and Jason Vasquez for deprivation of a liberty interest without due process (regarding the December 2, 2011, charge filed by Defendant Davis) (Count 3).

However, Plaintiff fails to state a claim upon which relief may be granted for failure to properly handle his grievances (Count 4), for deprivation of a liberty interest resulting from the February 22, 2011, disciplinary ticket issued by Defendant Allsup (Count 5), for verbal harassment (Count 6), or for interfering with his access to legal counsel (Count 7). These claims and the associated Defendants shall be dismissed from the action for the reasons to follow.

In addition, Plaintiff fails to include any allegations in the First Amended Complaint against a number of Defendants whom he had named in the original complaint, nor does he list them among the enumerated Defendants in the First Amended Complaint (Doc. 9, pp. 1-6). Plaintiff has therefore abandoned his claims against Defendants Magid Fahim, Dr. J. Shepherd, Dr. Hillerman, Dr. Sam Nwaobasi, F.E. Fuente, Rash Pollion, Kim Criss, Michelle Groves, Misty Thompson, Nurse Kiner, Nurse Oakley, Swisher, Heather Mosee, Amy Lans, Nurse Sullivan, Nurse Reynolds, Nurse Lorette, Nurse Donna, Nurse Anna, Officer Sulser, Officer August, Officer Bishop, Officer Fedderher, Officer Enselorse, Officer Heiman, Capt. Wright, Officer Miller, Officer Anthony, Officer Phlpe, Nurse Foutch, Officer Greenley, Officer Stockweather, Officer ...

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