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Howery v. Harrington

United States District Court, S.D. Illinois

December 29, 2014

BERNON L. HOWERY, #B12703, Plaintiff,
v.
RICK HARRINGTON, COUNSELOR N-2, MR. SCHWARTZ-COUNSELOR N-1, ROBERT L. PATTERSON, TIM SAPP, ANGELA GROTH, N-2 GALLERY OFFICERS, JOHN DOES # 1, 2 & 3-MEDICAL UNIT, Defendants.

MEMORANDUM AND ORDER

MICHAEL J. REAGAN, Chief District Judge.

Plaintiff Bernon L. Howery, an inmate in Menard Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on his being transferred to the segregation unit without cause, the conditions of his confinement, his interaction with correctional officers, and unanswered grievances. His original complaint failed to state a claim ( see Doc. 9). Plaintiff's amended complaint also failed to state a claim ( see Doc. 14). Plaintiff was given one more opportunity to plead a colorable claim. Plaintiff's second amended complaint (Doc. 17) is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A.

Section 1915A 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 Second Amended Complaint

As a preliminary matter, because Plaintiff is proceeding pro se, the administrative grievances inserted into the section of the complaint form reserved for the narrative of events will be considered as the factual support underlying Plaintiff's 19 enumerated claims. Even affording Plaintiff this generous reading of the second amended complaint, he fails to state a claim upon which relief can be granted.

On March 20, 2013, upon returning to Menard after being on a court writ, Plaintiff was housed in the N-1 cellhouse, which is where prison workers are housed. Although he is not a worker, he was still allowed to enjoy the many (unspecified) privileges afforded to the workers in N-1. However, on April 2, 2013, Plaintiff was moved to a single-man cell in cellhouse N-2, a segregation unit where the "problem men" are housed-inmates moved from Tamms Super-Max, and those who cannot be housed in the general population or who are under investigation. Plaintiff describes the conditions in N-2 as being "markedly different" from N-1. An unidentified officer, "Officer John Doe" just appeared, placed Plaintiff in "segregation cuffs, " and walked Plaintiff to N-2-"harassing" and "taunting" him on the way, acting "unprofessionally" and being "rude, uncouth and hateful."

Plaintiff was housed in N-2 from April 2, 2013, until April 12, 2013. During that ten-day period, an unidentified N-2/Gallery 7 Officer(s) denied Plaintiff clean bedding and the opportunity to bathe.

Plaintiff was never told why he was moved to N-2, and subsequent inquiries to his counselors-"Counselor-N2, " Mr. Schwartz, Tim Sapp and Angela Groth-have gone unanswered. Plaintiff characterizes the counselors as acting "negligently."

On April 11, 2013, Plaintiff was taken to the N-2 medical unit for treatment. He was "harshly cursed and chastised" by an unidentified N-2/Gallery 7 Officer. Then, Plaintiff was left for two or three hours waiting to be seen. During his wait, Plaintiff's hands were cuffed behind his back and he was chained to the floor. While in the health care office, passing ...


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