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Spivey v. Randal

United States District Court, S.D. Illinois

April 18, 2014

RAY CHARLES SPIVEY, #B-43143, Plaintiff,


MICHAEL J. REAGAN, District Judge.

Plaintiff Ray Charles Spivey, an inmate in Menard Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. This case is now before the Court for a preliminary review of the second complaint (Doc. 12) pursuant to 28 U.S.C. § 1915A, which provides:

(a) Screening.- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal.- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.

An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "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). The claim of entitlement to relief must cross "the line between possibility and plausibility. Id. at 557. Conversely, a complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

The Complaint

Plaintiff Spivey contends that he has been subjected to a pattern of harassment and retaliation, motivated both by race and Plaintiff's history of filing numerous administrative grievances and civil lawsuits against prison staff. Plaintiff contends that the harassment and retaliatory action has caused him great stress and affected his blood pressure, placing him at risk for a heart attack or stroke. He even fears being murdered.

The narrative in the second amended complaint includes several pages detailing events that do not pertain to named defendants (Doc. 12, pp. 2-5 (as numbered in the cm-ecf system)). Allegations pertaining to individuals not named as defendants will not be addressed and are not recognized as claims, but instead are considered only contextually. The following is a synopsis of the relevant allegations.

On February 4, 2013, Plaintiff was removed from his protective custody cell by Major Lashbrook and other unidentified guards and placed in a segregation cell for nine days under "investigatory status." Plaintiff was not told why he was under investigation, but when he was later released from segregation no charges were filed.[1]

Plaintiff had been in protective custody for unspecified "security and safety concerns" (Doc. 12, p. 6). When he was released from segregation, C/O Cheatman (who is not a named defendant) said that Plaintiff could not return to a protective custody cell because there was no space available. C/O A. Hood told Plaintiff that nothing would happen to him because he was being celled alone in an area that was on lockdown. Hood then explained that he could not find Plaintiff's personal property, which Plaintiff had not been allowed to pack before he was removed from his original protective custody cell. In an attempt to locate the property, Hood purportedly left a message with Internal Affairs. C/O Westerman later retrieved Plaintiff's personal property from Internal Affairs and delivered it to Plaintiff. Plaintiff discovered that several items were missing-such as shower shoes, Irish Spring soap and Colgate toothpaste, worth approximately $18. After Plaintiff filed a grievance, he was told that Internal Affairs denied ever having Plaintiff's property. Plaintiff claims that all of these acts were done in retaliation for Plaintiff's many grievances against Menard staff.

On May 8, 2013, Plaintiff purchased a television from the Menard commissary for $206.25. Within a week, all of the channels were "locked out" and the set could not be fixed. C/O A. Hood returned the television to the commissary, and on May 21, 2013, Plaintiff was given a new television. Approximately four months later, on September 26, 2013, the sound went out on 11 channels on the second television. At Plaintiff's request, Sgt. Shurtz directed C/O Davis to take the broken television to the commissary for a replacement. C/O Davis refused to do anything, telling Plaintiff the set had to go to the vocational school repair shop for repair. Plaintiff was concerned because the television had a warranty that, by Plaintiff's calculation, was going to expire in October 21, 2013. Davis essentially told Plaintiff to take the television to the commissary himself, and he walked away. Plaintiff spoke with Lt. Cartwright about his problem, who in turn spoke to Sgt. Shurtz; C/O Davis subsequently picked up the television from Plaintiff and then told Plaintiff the set had been given to an unidentified escort officer. Plaintiff later found out that the television had been taken to the vocational department repair shop, not to the commissary. Plaintiff states that he knows Sgt. Shurtz had the television taken to the repair shop, rather than the commissary where it would be replaced under the warranty, "in retaliation for [Plaintiff] going to Lt. Cartwright, who conspired with Sgt. Shurtz to show [Plaintiff] that he was not running nothing" [sic] (Doc. 12, p. 7), and because of Plaintiff's pending lawsuits against prison personnel. Plaintiff also asserts that Commissary Supervisor Jones said the warranty had expired-that it was a 60-day warranty, not a 180-day warranty. In any event, when Lt. Cartwright requested Plaintiff sign a $10 payment voucher for the repair Plaintiff refused, citing his still valid warranty. During the discussion about the validity of the warranty, Plaintiff accused Cartwright of retaliation, prompting Cartwright to say, "Sue me."

Plaintiff wrote to Assistant Warden Kim Butler, explaining the warranty issue and noting that the repair shop had been closed for a year. Plaintiff asked for a replacement television, asserting that the products at the commissary were overpriced and defective, due to a price-gauging conspiracy between Commissary Supervisory Jones and Warden Harrington. Butler responded that Sgt. Cartwright had told her that the warranty had expired, but that the television was going to be repaired at no charge. During the time the television was out for repair, each day Plaintiff brought the matter to the attention of Lt. Cartwright, which eventually lead C/O Hood, C/O Lindberg and other unidentified guards to "laugh and make jokes" about Plaintiff, knowing the television had been taken to the repair shop in retaliation against Plaintiff. Grievances and another letter to Assistant Warden Butler went unanswered. As Assistant Warden of Programs, Butler could have cured Plaintiff's problems and saved him a great deal of stress, lost sleep and the related physical toll.

The television was finally returned to Plaintiff on October 25, 2013, by C/O Westerman. All but five of the 66 channels had been deleted-three of the remaining channels were Spanish language stations, but Plaintiff does not speak Spanish. In addition, Plaintiff was locked out from programming any more channels into the set. Plaintiff claims that the channels were altered in another act of retaliation. C/O Valleyroy took the television back to the repair shop and told Plaintiff that it would not be repaired unless a $10 payment voucher was signed. Plaintiff asserts that Valleyroy and C/O Engelase were aware that Vocational School Supervisor Shurtz had deleted the channels and locked out the menu mechanism in retaliation, but nothing was done.

On November 2, 2013, Plaintiff asked Lt. Cartwright when he would be getting his television. Cartwright told Plaintiff he would get it when he got it. On two occasions Plaintiff attempted to speak to Lt. Hughes and Lt. Bradley, but C/O Davis interjected and nothing came of Plaintiff's complaints. Another attempt to enlist the assistance of Lt. Bradley was blocked by C/O Lindberg, who stopped Plaintiff and said, "Didn't I just talk to you about that TV?"-provoking a response from Plaintiff. Lt. Bradley then took issue with how Plaintiff had talked back to Lindberg. Lindberg later found Plaintiff in his cell and warned Plaintiff not to ever disrespect him in front of his lieutenant. Their conversation concluded with Lindberg telling Plaintiff that he, Lindberg, would make sure Plaintiff never got the television-which he has not. Plaintiff considered that a threat, so he filed an emergency grievance with Warden Harrington, but Harrington rejected the grievance, concluding it was not an emergency. Sgt. Shurtz is also aware of Plaintiff's problems, but he continues to assign the problematic guards to Plaintiff's gallery. Daily, C/O Lindberg walks the gallery where Plaintiff is celled, staring at plaintiff in an "aggressive" manner, trying to get a reaction out of Plaintiff. In addition, Sgt. Mannerich refused Plaintiff's request for an Intern Affairs investigation of Lindberg. Plaintiff then wrote directly to Major Lashbrook, Supervisor of Internal Affairs, but there still has not been an investigation about the television, retaliation, threats and harassment.

The second amended complaint also details how just after the television was taken away for the final time, C/O Hood asked Plaintiff's cellmate if Plaintiff was still upset about the television-Hood and other guards then started laughing. The next day, C/O Lindberg and C/O Davis were making jokes and remarks about Plaintiff and the television. Plaintiff also contends he is under threat of being murdered by C/O Davis, who is under investigation for endangering the life of another African American inmate. And, Davis is "buddies" with Hood and Lindberg, so Plaintiff is afraid of them as well-they are all aware of this pending civil action. Plaintiff asserts that prison guards are racists, who tell racist jokes and make racist comments. He further notes that he is an older, African American inmate, who is referred to as "Mississippi" (Plaintiff's birthplace).

Plaintiff offers other broad allegations. He takes issue with Warden Harrington, who is responsible for all staff and signs every grievance, but who has not helped Plaintiff. He contends Sgt. Cartwright may have been the one to delete the channels and "lock out" the menu feature on his television. Bradley allegedly conspired with Lindberg to cause Plaintiff stress. And, C/O Hood tried to bump into Plaintiff ...

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