United States District Court, C.D. Illinois, Springfield Division
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, District Judge.
This cause is before the Court for a merit review, pursuant to 28 U.S.C. § 1915A, of Plaintiff Demetrius Armstrong's claims and for consideration of his motion for appointment of counsel.
MERIT REVIEW UNDER 28 U.S.C. § 1915(A)
Under 28 U.S.C. § 1915(e)(2) and § 1915A, the Court is required to carefully screen a complaint filed by a plaintiff who seeks to proceed in forma pauperis. The Court must dismiss a complaint, or a portion thereof, if the plaintiff has raised claims that are legally "frivolous or malicious, " that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. Id.
The test for determining if an action is frivolous or without merit is whether the plaintiff can make a rational argument on the law or facts in support of the claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim for relief if the complaint does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
In reviewing the complaint, the Court accepts the factual allegations as true and liberally construes them in plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Conclusory statements and labels are insufficient. Fed.R.Civ.P. 8; Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (holding that, in order to determine if a complaint states a plausible claim, the court must take non-conclusory, non-speculative facts as true, draw all reasonable inferences in the pleader's favor, and isolate and ignore statements that simply rehash claim elements or offer only legal labels and conclusions). Instead, sufficient facts must be provided to "state a claim for relief that is plausible on its face." Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013)(internal quotation omitted).
Plaintiff Demetrius Armstrong is an inmate within the Illinois Department of Corrections who, at all relevant times, was housed at the Western Illinois Correctional Center ("Western"). Defendant Lt. Fishel is a lieutenant at Western. Defendant M. Mountain is a correctional officer at Western, and Defendant John Doe is a correctional officer at Western.
Armstrong alleges that these Defendants violated his constitutional rights in two ways. First, Armstrong claims that Lt. Fishel violated his First Amendment rights by asking him to be quiet during meal time. Armstrong asserts that Lt. Fishel's actions violated his First Amendment rights because there is no IDOC rule or regulation at Western prohibiting him from talking during meal time.
Second, Armstrong alleges that Defendants used excessive force against him in violation of his Eighth Amendment rights. Specifically, Armstrong asserts that Defendant Mountain used pepper spray on him without reason or justification and that, after he had been handcuffed, Defendants kicked him in the face and groin, pulled his arms, and punched him in the stomach.
"To prevail in this section 1983 action, [Armstrong] must establish (1) that he had a constitutionally protected right, (2) that he was deprived of that right, (3) that [Defendants] intentionally deprived him of that right and (4) that [Defendants] acted under color of state law." Forrest v. Prine, 620 F.3d 739, 743 (7th Cir. 2010). Armstrong has failed to allege sufficiently that he had a constitutionally protected First Amendment right of which Lt. Fishel deprived him. Accordingly, Armstrong's First Amendment claim is dismissed.
There is no generalized First Amendment right to speak whenever one desires. In order "[t]o prevail on a First Amendment retaliation claim, [Armstrong] must ultimately show that (1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was at least a motivating factor in the Defendants' decision to take the retaliatory action." Id. at 546 (internal quotations omitted). Bridges v. Gilbert, 557 F.3d 541, 547-48 (7th Cir. 2009)(internal quotations ...