United States District Court, S.D. Illinois
TIMOTHY J. CUNNINGHAM, Sr., Plaintiff,
C/O SHARP, Defendant.
MEMORANDUM AND ORDER
MICHAEL J. REAGAN U.S. District Judge.
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).
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).
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
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.
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.
2, pp. 7-8). In short, Plaintiff alleges that C/O Sharp took
an envelope with two motions from him and failed to deliver