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Martin v. Brenner

United States District Court, Seventh Circuit

May 30, 2013

DERRICK MARTIN, #R-49274, Plaintiff,
v.
MR. HUDSON, MR. HASS, ANGELA GROTT, LORI OAKLEY, RICHARD HARRINGTON, and LORI BRENNER, Defendants.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

Plaintiff, currently incarcerated at Menard Correctional Center ("Menard"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving two fifteen-year sentences and a ten-year sentence for separate aggravated criminal sexual assault convictions. In this action, Plaintiff claims that his personally-created artwork was improperly confiscated, and that his grievances over this taking were mishandled.

More specifically, Plaintiff claims that on February 13, 2013, Defendant Hass and other officers shook down his cell. They came across four oil paintings and an acrylic poster painting created by Plaintiff, and confiscated them for review by Internal Affairs ("IA"). Plaintiff believes that the artwork was removed from his cell because of "the type of art done on the pieces of [his] political views and sexual orientational taste between husband [Plaintiff] and [his] wife" (Doc. 1, p. 5).

Plaintiff was never issued a disciplinary ticket for having the paintings, nor was he given a "shakedown slip" (property receipt) after they were taken. Defendant Hass told him he should be glad he did not get a ticket, and that IA wanted to look at his artwork to make sure it was not in violation of prison policy. Id.

Plaintiff filed grievances, first to Defendant Grott (counselor), and then to Defendants Hudson (of Internal Affairs), Oakley (grievance officer), and Brenner (personal property officer) (Doc. 1, p. 4). Only Defendant Grott responded, stating simply: "Art Work Not Allowed" (Doc. 1, p. 5). Plaintiff contends that Defendant Grott intercepted his letters to Defendants Hudson, Oakley, and Brenner. After waiting more than 30 days with no further response to his grievances, Plaintiff wrote to Defendant Harrington (warden) on March 18, 2013 (Doc. 1, p. 4). Defendant Harrington did not respond.

The paintings have not been returned to Plaintiff, nor has he had any hearing as a result of his grievances. He argues that the prison regulations do not include any guidelines regarding what type of artwork is allowed or prohibited, and that he has the right to "freedom of speech and expression through creative writing and artwork" (Doc. 1, p. 5).

Plaintiff requests an order returning his artwork to him, as well as compensation for any damage to the paintings and for confiscated art supplies (Doc. 1, p. 6).

Merits Review Pursuant to 28 U.S.C. § 1915A

Under § 1915A, the Court is required to conduct a prompt threshold review of the complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from an immune defendant.

Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable First Amendment claim against Defendants Hass, Hudson, and Grott, for confiscating and/or refusing to return his artwork (Count 1). However, the taking of the paintings and art supplies, analyzed as a personal property claim (Count 2), is not cognizable in a civil rights action. Further, the failure to respond to grievances (Count 3) does not amount to a constitutional claim upon which relief may be granted.

Count 1

Prisoners retain some First Amendment rights, but restrictions on an inmate's freedom of speech and expression are valid if they are reasonably related to legitimate penological interests. Turney v. Safley, 482 U.S. 78, 89 (1987); Lindell v. Frank, 377 F.3d 655, 657 (7th Cir. 2004). At this early stage of the litigation, the Court is unable to discern whether Plaintiff's paintings were confiscated pursuant to a reasonable prison policy or whether this taking violated the First Amendment. Therefore, the claim in Count 1 shall receive further review against Defendant Hass, who removed the artwork from Plaintiff's cell, and Defendants Hudson and Grott, [1] who (according to Plaintiff) determined that the artwork would not be returned to him.

In addition, because Plaintiff is seeking injunctive relief, Defendant Warden Harrington shall remain in the action. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (proper defendant in a claim for injunctive relief is the government ...


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