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Borowski v. Baird

United States District Court, S.D. Illinois

September 7, 2016

MATTHEW PAUL BOROWSKI, #58580-060 Plaintiff,


          J. Phil Gilbert United States District Court Judge

         Plaintiff Matthew Borowski, an inmate in the United States Penitentiary in Marion, Illinois (“Marion”), brings this pro se action for alleged violations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). This case is now before the Court for preliminary review of the complaint pursuant to 28 U.S.C. § 1915A. Borowski's claims all stem from two alleged incidents of his mail being screened and rejected by prison authorities. In connection with his claims, Borowski names Maureen P. Baird (warden), Sara M. Revell (grievance review personnel), John/Jane Doe 1 (mail room staff), John/Jane Doe 2 (mail room staff), and John/Jane Doe 3 (mail room staff). Borowski seeks a replacement copy of his calendar at government expense, as well as monetary damages.

         Under § 1915A, the Court is required to screen prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the complaint 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. 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 Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

         Applying these standards, the Court finds that Borowski's Complaint states sufficient factual and legal claims to proceed beyond threshold screening against some defendants.

         The Complaint

         In December of 2015 Borowski first attempted to order the “Straight Stuntin Double Trouble 2016-2018” calendar from Black Media Family, an online retailer and publishing company (Doc. 1 at 20). He subsequently received notice from Black Media Family that the calendar had been rejected by the Warden of Marion (Id.). Borowski's mother also attempted to send him the calendar via Amazon vendor Tri State Books/Music. Meanwhile, in February 2016, Borowski contacted Black Media Family to learn more about the potential reasons for the rejection of the publication (Id.). On February 21, Black Media Family informed Borowski via email that the calendar did not contain nudity and that Marion was the first such facility to reject it (Id.). On February 25, 2016, Black Media Family informed Borowski that they had successfully mailed the calendar to FCI/USP Terre Haute, FCI Seagoville, and FCI Petersburg (Id.).

         In February 2016, Borowski began the internal grievance procedure at Marion, seeking an explanation for the rejection, as well as an opportunity to review the rejected material to verify the basis for rejection (Id.). His initial grievance was denied, and he appealed the denial on February 28, 2016 (Id.). On March 3, 2016, Borowski received the Warden's response to his grievance, which he found odd because the response stated that the “mail room” apparently rejected the publication (Id. at 20-21). He found the response odd because it was signed by the assistant warden, it did not mention Marion as a sex offender facility, and by his reading it meant the mail room sua sponte rejected his publication without the warden's oversight, in contravention of established First Amendment screening procedures (Id. at 21).

         Borowski pursued appeals of his grievance with the Regional Director and the Central Office as well (Id.). Borowski claims that the Regional Director's response parroted the language of the warden's rejection (Id. at 21-22). At the time of filing his complaint, Borowski had yet to receive a response from the Central Office (Id. at 22).

         Borowski appended the grievances to his complaint (Id. at 6-19). In each of his grievances he made the same two allegations: (1) that the prison was mistaken in labeling the publication as containing nudity; and, (2) that his Fifth Amendment due process right was being denied because he was not allowed to review the material himself (Id.). The responses to the grievances insisted that the material was rejected based on nudity as defined by prison regulations and the Ensign Amendment (Id.).

         On August 8, 2016, Borowski filed a Motion seeking to amend his complaint with a two paragraph statement further expounding upon the legal theories he intends to rely upon in pursuing his claims (Doc. 6). In the Motion he contends that his First Amendment rights were violated by the actual rejection of the calendar, and that the violation then extended throughout the grievance process because officials failed to follow appropriate procedures in reviewing the rejected calendar (Id.). Namely, at no point did the officials allow him to review the material (Id.). He also asserts that in conducting their own review of his grievances, the institution erred because someone other than the Warden rejected the publication, and the Regional Director erred by rejecting his grievance without reviewing the publication (Id.).

         Borowski seeks replacement of his calendar at government expense, as well as monetary damages (Doc. 1 at 23).

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

         Based on the allegations of the complaint, the Court finds it convenient to divide the pro se action 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. Any other claim that is ...

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