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Cunninghamm v. Sharp

United States District Court, S.D. Illinois

March 24, 2017

TIMOTHY J. CUNNINGHAM, Sr., Plaintiff,
v.
C/O SHARP, Defendant.

          MEMORANDUM AND ORDER

          MICHAEL J. REAGAN U.S. District Judge.

         Plaintiff Timothy Cunningham, Sr., an inmate who is currently incarcerated at Lawrence Correctional Center (“Lawrence”), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 against C/O Sharp, a correctional officer at Lawrence who allegedly interfered with his access to the courts in November 2015. (Doc. 2). He seeks monetary relief. (Doc. 2, p. 18).

         Plaintiff originally brought the access-to-courts claim (“Count 4”) against C/O Sharp in another case that he filed in this District. See Cunningham v. Bridwell, et al., No. 16-cv-01360-MJR (S.D. Ill. 2017) (“original case”). Count 4 was severed from the original case because it was unrelated to other claims that Plaintiff asserted therein. (Doc. 10, original case). The instant case was opened on February 8, 2017. (Doc. 1, instant case).

         Count 4 is now subject to preliminary review pursuant to 28 U.S.C. § 1915A, which provides:

(a) Screening - The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal - On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.

         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 any reasonable person would find meritless. 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. At this juncture, the factual allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009). Count 4 does not survive screening under this standard and shall therefore be dismissed.

         The Complaint

         The allegations offered in support of Plaintiff's access-to-courts claim are set forth in a single paragraph of his Complaint, as follows:

On 11-8-15 in House 6AL01 at 9:30 (or thereabout) I handed C/O Sharp an envelope to place in institutional mail, complete with my return address and marked “To Law Library, ” with two motions and exhibits (about 200 pages) for copying. My requests for the Law Library trying to locate this envelope on 11-17-15, 11-20-15, and 11-24-15 were never received by the Law Library--and of course I got no response. I presume officers diverted those requests, just like they had diverted my motions for copies. I located and retrieved that envelope on 11-27-15. It was in the control center for my building (where all officers lounge 24 hours per day). It was open but complete. Law Library did not receive it, nor was it returned to me until C/O Bruner located it for me, and C/O Tanner passed it to me through the pass through port outside the control center. This was the second such diversion of mail I had experienced while prosecution of my Habeas Corpus and its Appeal. The answer to my Grievance (#12-15-63) revolved around the elevator instead of what I grieved--mail diversion and access to the courts. It suggests I submit written requests (via institutional mail) to the Law Library for arrangements. I couldn't get any mail to the Law Library to request anything due to the diversion by my house officers! Grievance sent to grievance officer on 12/17/15 was not reviewed until 2-29-16. Warden signed off on it on 3/2/16, and I received it on 3-29-16. I copied it and sent it on to the A.R.B. on 3-30-16, and have not gotten a response yet.

         (Doc. 2, pp. 7-8). In short, Plaintiff alleges that C/O Sharp took an envelope with two motions from him and failed to deliver ...


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