United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
I. SHADUR SENIOR UNITED STATES DISTRICT JUDGE.
on the information in the application for leave to proceed in
forma pauperis ("Application, " Dkt. No. 3) that
pro se prisoner Jorge Luis Pena ("Pena") has
submitted with his self-prepared Complaint, the Application
is granted. This Court orders the trust fund officer at
Pontiac Correctional Center ("Pontiac"), Pena's
place of incarceration, to deduct $15.79 from Pena's
account there for payment to the Clerk of Court as an initial
partial payment of the filing fee, and to continue making
monthly deductions in accordance with this order, for which
purpose the Clerk of Court is directed to send a copy of this
order to the trust fund officer at Pontiac. Summonses,
however, shall not issue. Instead Pena's Complaint [Dkt.
No. 1] and this action are dismissed pursuant to this
Court's initial review under 28 U.S.C. §§
1915(e)(2) and 1915A,  for failure to state a claim on which
relief may be granted (this dismissal counts as one of
Plaintiff's three strikes under Section 1915(g)). Lastly,
Pena's motion for recruitment of counsel [Dkt. No. 4] is
denied as moot.
Section 1983 Claim
has invoked 42 U.S.C. § 1983 ("Section 1983")
to file a "Complaint Under the Civil Rights Act, Title
42 Section 1983." Currently before this Court are
Pena's application for leave to proceed in forma
pauperis, his Complaint and his motion for attorney
Pena's Application demonstrates that he cannot prepay the
filing fee, it is granted on the limited basis provided for
in Section 1915. Pursuant to Section 1915(b)(1) and (2) this
Court orders (1) Pena to pay immediately (and Pontiac to
remit automatically) $15.79 to the Clerk of Court as the
initial partial filing fee and (2) Pena to pay (and Pontiac
or any other custodial institution to which he may be
transferred hereafter to remit automatically) to the Clerk of
Court 20% of the amount deposited to his trust fund account
for each calendar month during which he receives $10 or more,
until the $350 filing fee is paid in full. This Court directs
the Clerk of Court to ensure that a copy of this order is
mailed to each facility where Pena is housed until the filing
fee has been paid in full. All payments shall be sent to the
Clerk of Court, United States District Court, 219 South
Dearborn Street, Chicago, Illinois 60604, Attention:
Cashier's Desk, 20th Floor, and shall clearly identify
Pena's name and the case number assigned to this case.
1915(e)(2) and 1915A(a) require this Court to screen pro se
prisoners' complaints and dismiss any such complaint, or
any of its claims, if this Court determines that the
complaint or a claim is frivolous or malicious, fails to
state a claim on which relief may be granted or seeks
monetary relief against a defendant who is immune from such
relief (Jones v. Bock, 549 U.S. 199, 214-15 (2007)).
To that end courts screen prisoner litigation claims in the
same manner that they evaluate ordinary Fed.R.Civ.P.
("Rule") 12(b)(6) motions to dismiss (Maddox v.
Love, 655 F.3d 709, 718 (7th Cir. 2011)).
motion challenges the sufficiency of the complaint
(Hallinan v. Fraternal Order of Police of Chicago Lodge
No. 7, 570 F.3d 811, 820 (7th Cir. 2009)), for which
purpose Rule 8(a)(2) calls for a complaint to include "a
short and plain statement of the claim showing that the
pleader is entitled to relief, " which statement must
"give the defendant fair notice of what the claim is and
the grounds upon which it rests" (Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Under federal notice
pleading standards a plaintiff's "[f]actual
allegations must be enough to raise a right to relief above
the speculative level" (id.). Put differently,
a "complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face'" (Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009), quoting Twombly, 550 U.S.
Alam v. Miller Brewing Co., 709 F.3d 662, 665-66
(7th Cir. 2013) teaches:
In reviewing the sufficiency of a complaint under the
plausibility standard, we accept the well-pleaded facts in
the complaint as true.
also construe pro se complaints liberally (Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam)). What
follows is a summary recapitulation or Pena's allegations
without paragraph of page citations.
November 11, 2015, while Pena was an inmate at Stateville
Correctional Center, his cell was searched by correctional
officers. During that search two homemade weapons were
confiscated. On that same day a disciplinary report was
generated regarding the search and confiscation of the
weapons. On November 24 Pena appeared before the Adjustment
Committee on the disciplinary report. Pena denied the weapons
were his and presented an affidavit from his cellmate in
which the cellmate took full responsibility for the weapons
being in the cell.
November 28 the disciplinary report was rewritten at the
request of the Adjustment Committee. As revised it included a
statement that a correctional officer had observed Pena
sitting on the bottom bunk before the search and that some of
his papers were located under the mattress of the bottom
bunk. After Pena had been transferred to Pontiac, the
Stateville Adjustment found him guilty of possession of the
contraband on December 3 and imposed as disciplinary measures
(1) six months C grade, (2) six months segregation, (3)
revocation of three months of good conduct credits, (4) six
months of commissary restrictions and (5) three months of
Pena grieved the guilty finding and the disciplinary report
was expunged, that does not entitle him to Section 1983
relief. Why? Because that section requires a showing of a
constitutional violation, and here Pena's
allegations and exhibits attached to the Complaint show that
he was afforded the due process to which he was entitled.
familiar parlance of the Constitution's Due Process
Clause, a person may not be deprived of life, liberty or
property without due process of law (Wolff v.
McDonnell, 418 U.S. 539, 556 (1974)). And to establish a
due process violation in a case such as this, a plaintiff
must demonstrate both (1) that there was a protected interest
at stake that necessitated the protections demanded ...