United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
MICHAEL J. REAGAN U.S. Chief District Judge.
Theodore Harmon, 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. Harmon's claims stem from alleged
incidents of his incoming mail being rejected by the mailroom
on the premise that it contained depictions of nudity or
other inappropriate content. Harmon also alleges that a
number of prison officials violated his rights in denying his
grievances regarding the screening of his incoming mail. In
connection with his claims, Harmon names J.S. Walton
(warden), Unknown parties (John/Jane Does 2-4, publication
review committee members, and John/Jane Does 5-6, mailroom
staff), William Mays (counselor), Brad Weesel (counselor),
Rungy (correctional system specialist), and John Doe
(administrative remedy coordinator). Harmon seeks monetary
damages and injunctive relief.
§ 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).
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).
these standards, the Court finds that Harmon's Complaint
fails to state any claims upon which relief may be granted.
It should be noted that the Court reviewed Harmon's First
Amended Complaint for purposes of this screening order (Doc.
alleges that on or about April 23, 2015, the mailroom at
Marion received a publication-Flat Chested Lydia; Fresh Face
Model Chloe Knoxs-that was addressed to him (Doc. 12 at 10).
John/Jane Does 5 and 6 allegedly examined the publication and
flagged it for nudity or sexually explicit content
(Id.). The publication review committee then
reviewed and rejected the publication (Id.). The
committee was led by defendant Rungy, and was comprised of
John/Jane Does 2-4 (Id.). Warden J.S. Walton
subsequently reviewed and rejected the publication on the
same grounds (Id.). Harmon then received notice of
the Warden's actions and commenced the grievance process
(Id. at 11).
to Harmon, the publication contained thumbnail sized images
that did not depict nudity, but instead contained images of
negligee clad models that could be ordered as larger prints
(Id. at 10). Harmon alleges that the content
depicted did not fall within the scope of materials exempted
by the Ensign Amendment or other BOP procedures
(Id.). Despite raising these concerns throughout the
grievance process, Harmon secured no relief (Id. at
11-12). In addition to his grievances being rejected, Harmon
contends that he was prevented from properly filing a
Regional Appeal of his grievance because his counselor,
Defendant Weesel, intentionally interfered with the proper
format for filings, made himself unavailable during the
timeframe that the grievance was due, and refused to grant an
exception based on the correlation between his unavailability
and Harmon's attempts to file a grievance (Id.).
As a result of Weesel's actions, John Doe (the facility
remedy coordinator) rejected one of Harmon's grievances
for a formatting deficiency (Id.).
ultimately alleges that he is unsure what legal theories
might apply to his situation, but that he prays for any
applicable relief. He also claims that the parties acted in a
conspiracy to deny his rights, as contemplated by 42 U.S.C.
§ 1985 (Id. at 12).
Review Pursuant to 28 U.S.C. § 1915A
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 mentioned in the
complaint but not addressed in this Order should be
considered dismissed without prejudice.
Count 1: First Amendment claim for rejection
of Harmon's incoming mail in April 2015,
Count 2: Fifth Amendment Due Process
violation for preventing access to the prison grievance
Count 3: Conspiracy claim against the
defendants for acting together to deny Harmon's rights in
violation of 42 ...