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Malone v. Selby

United States District Court, S.D. Illinois

December 6, 2016

WILLIAM A. MALONE, # B-52858, Plaintiff,
v.
COUNSELOR SELBY, and MAJOR MALCOME, Defendants.

          MEMORANDUM AND ORDER

          MICHAEL J. REAGAN U.S. Chief District Judge

         This matter is before the Court for case management. On August 29, 2016, following the Memorandum and Order entered in Malone v. Lashbrook, et al., Case No. 16-cv-200-SMY (Doc. 1 in the instant case), this matter was severed from the original case pursuant to George v. Smith, 507 F.3d 605 (7th Cir. 2007). The two claims in the instant action, designated by the Court as Counts 7 and 8 in the original case, are as follows:

Count 7: First Amendment claim against Defendants Selby and Malcome for interfering with Plaintiff's practice of his religion, by destroying or discarding Plaintiff's bible concordance on October 9, 2014;
Count 8: Eighth Amendment claim against Defendant Selby for threatening Plaintiff with segregation over his use of the shower on October 10, 2014.

         As Plaintiff was informed in the order severing his claims, the required preliminary review of these claims pursuant to 28 U.S.C. § 1915A is now due to be conducted.

         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 one of Plaintiff's claims survives threshold review under § 1915A.

         The Complaint

         As noted in the order severing the claims (Doc. 1), Plaintiff's narrative is very brief, consisting primarily of a cursory list of grievances filed by Plaintiff, and assertions of constitutional violations. He includes little detail. The only allegations supporting Counts 7 and 8 are as follows.

         On October 9, 2014, Plaintiff states that Defendant Selby: “destroyed/discarded Plaintiff's Bible concordance and Major Malcome condoned act.” (Doc. 2, p. 14).

         On October 10, 2014, he accuses Defendant Selby of “Intimidation- Threats, Harassment that if Plaintiff request/remains in shower over 15 min[utes] Plaintiff would be walked to seg.” (Doc. 2, p. 14).

         The complaint seeks compensatory and punitive damages. ...


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