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Harmon v. Walton

United States District Court, S.D. Illinois

September 22, 2016

THEODORE HARMON, #57859-060 Plaintiff,


          MICHAEL J. REAGAN U.S. Chief District Judge.

         Plaintiff 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.[1] 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.

         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 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. 12).

         The Complaint

         Harmon 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).

         According 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.).

         Harmon 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).

         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 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 procedure; and,
Count 3: Conspiracy claim against the defendants for acting together to deny Harmon's rights in violation of 42 ...

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