United States District Court, Southern District of Illinois
MEMORANDUM AND ORDER
J. Phil Gilbert, United States District Judge.
Plaintiff James Owens, an inmate currently housed at Lawrence Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. His original complaint (Doc. 1) was dismissed and he was granted leave to file an amended complaint, albeit limited to dramatically fewer claims and defendants (see Doc. 6).
Timeliness of the Amended Complaint
As a preliminary matter, the Court must determine whether the amended complaint (Doc. 14) was timely filed.
Plaintiff missed the initial deadline for filing an amended complaint, but the Court granted him an extension, which he also failed to meet (see Docs. 6, 12). Four days after the prescribed deadline, a motion for an extension of time was filed (Doc. 13). Plaintiff explained that he had not received the Court’s order until mere days before the new deadline. The amended complaint was ultimately filed 23 days late.
For good cause shown, Plaintiff’s motion for an extension of time to file the amended complaint (Doc. 13) is GRANTED; thus, the amended complaint (Doc. 14) is deemed timely.
The Standard of Review
The amended complaint (Doc. 14) is now before the Court for a preliminary review of pursuant to 28 U.S.C. § 1915A. The Court is required to dismiss any portion of the amended pleading that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).
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). Frivolousness is an objective standard that refers to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). 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. At this juncture, the factual allegations of the pro se pleading are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Amended Complaint
Plaintiff was limited to presenting only claims regarding assaults and the denial of protective custody at Menard (see Doc. 6, p. 21). He has taken full advantage of the opportunity to amend his pleading by attempting to link multiple claims by way of alleging conspiracy and retliation.
According to the amended complaint (Doc. 14), in 2005 Plaintiff was granted protective custody and administratively removed from Menard Correctional Center (“Menard”) because he had “enemies” there. It is not entirely clear, but there may have been some connection between Plaintiff’s move from Menard and a civil rights action he lodged against Menard personnel.
In 2011, when Plaintiff requested protective custody at Pinckneyville Correctional Center (“Pinckneyville”), there was nowhere to place him, except in disciplinary segregation. He was held there for nine months. Despite the fact that in 2005 Plaintiff had been ordered removed from his enemies at Menard, and despite Plaintiff having filed suit against Menard staff, Transfer Coordinator John Doe #3 directed that Plaintiff be transferred back to Menard. On December 21, 2011, John Doe#1 and John Doe #2 removed Plaintiff from his cell, shackled him, and transported him from Pinckneyville to Menard.
Upon his arrival at Menard, Plaintiff was “verbally and physically assaulted” by six correctional officers, John Does #4-9 (Doc. 14, p. 4). The next day, while Plaintiff was cuffed and being moved by John Doe #10, John Doe #11 struck Plaintiff in the face-once with an open hand, and a second time with a closed fist.
A month after Plaintiff’s arrival at Menard, he was released from segregation, but his request for placement in protective custody was denied. John Doe #12, without apparent cause, assigned Plaintiff to the east cellhouse, which is designated for medium-to-high aggression inmates; Plaintiff had been characterized as a low aggression inmate.
In October 2012, Plaintiff was celled with inmate Pleasant, who had never before been celled with a white inmate. Pleasant destroyed Plaintiff’s personal property and stole his food. Plaintiff complained but was not moved, so he commenced a hunger strike. Plaintiff could not get Warden Atchison, or an unidentified lieutenant to comply with administrative directives regarding hunger strikes (no details are offered in the amended complaint). On the tenth day of what turned out to be an eleven-day hunger strike, Plaintiff was taken to the health care unit; his ketone levels were high. While in the health care unit, Plaintiff asked John Does #14 and 15 for protective custody, to no avail. Plaintiff also asked Officer (Sgt.) Wells. Wells refused the request, but instructed Plaintiff to ask the cellhouse sergeant when Plaintiff returned from the health care unit. Ultimately, Plaintiff was not allowed to speak to the cellhouse sergeant; instead, he was forced back into the cell with inmate Pleasant (by whom is unknown).
On November 24, 2012, Plaintiff asked Counselor Phoenix for protective custody placement. Phoenix promised to send Plaintiff the form, but Plaintiff never received it. Plaintiff remained celled with inmate Pleasant until December 21, 2012, when Plaintiff was transferred to Lawrence Correctional Center for no apparent reason.
Based on the allegations in the amended complaint, and Plaintiff’s own general description of his legal claims, the Court finds it convenient to divide the pro se pleading into the following counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit.
Count 1: All Defendants conspired to violate Plaintiff’s constitutional rights;
Count 2: All Defendants acted in retaliation for Plaintiff having filed suit against Menard staff or for exercising his right to go on a hunger strike, all in violation of the First Amendment;
Count 3: John Doe #3, the Transfer Coordinator, transferred Plaintiff back to Menard, in violation of the Eighth Amendment;
Count 4: John Does #1 and #2 shackled Plaintiff, removed him from his cell and transferred him to Menard, all in violation of the Eighth Amendment;
Count 5: John Does #4-9 verbally and physically assaulted Plaintiff, in violation of the Eighth Amendment;
Count 6: John Doe #11 struck a handcuffed Plaintiff in the face, while John Doe #10 held Plaintiff, all in violation of the Eighth Amendment;
Count 7: John Doe #12 assigned Plaintiff to the east cellhouse, and to be celled with inmate Pleasant, in ...