United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge.
brought this pro se civil rights action pursuant to
42 U.S.C. § 1983 while he was incarcerated at Shawnee
Correctional Center (“Shawnee”). Since he filed
the case, he has been released from custody. (Doc. 6).
Plaintiff claims that Officer Moore repeatedly harassed him
by subjecting him to searches and forcing him to leave his
coat unzipped in cold weather and that the other Defendants
failed to respond to his complaints over this behavior.
Complaint is now before the Court for a preliminary review
pursuant to 28 U.S.C. § 1915A. 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).
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 plausibleonits 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).
fully considering the allegations in Plaintiff's
Complaint, the Court concludes that one claim survives review
under § 1915A.
relates four encounters with C/O Moore; the first was on
September 14, 2015. (Doc. 1, p. 7). Plaintiff was on his way
to chow at 10:00 am, when Moore told him to unzip and open
his coat. Plaintiff complied, but when he began to zip the
coat again, Moore told him to leave it unzipped. Plaintiff
protested that he is anemic and he felt cold, but Moore
insisted it “has to be that way today” and it was
not that cold. Plaintiff left the coat unzipped.
Plaintiff was returning from chow, Moore approached him
again, remarking that Plaintiff was “all salty at
him” about the incident, but Moore had a job to do.
(Doc. 1, p. 7). Plaintiff informed Moore that he has the
sickle cell anemia trait which makes him cold. Moore
responded that his orders were for security reasons and said
that the issue would not be a problem. Moore failed to give
Plaintiff a shakedown slip, which is required any time a
search of an inmate is conducted. (Doc. 1, p. 8).
next day (September 15, 2015), Moore stopped Plaintiff again
on the way to lunch, and again told Plaintiff to unzip his
jacket. (Doc. 1, p. 8). Moore told Plaintiff he needed to see
if Plaintiff was carrying anything on him. Moore again
ordered Plaintiff to keep the jacket unzipped, dismissing
Plaintiff's reminder that he was cold and anemic.
Plaintiff points out that he had a stroke in 2011, which left
him very weak and without feeling on his left side, so he
poses no threat to anybody. Plaintiff complained to Lt.
Christopher about Moore's unreasonable orders.
Christopher informed Plaintiff that Moore is his
brother-in-law. He suggested that Plaintiff re-zip his jacket
when he is out of Moore's sight, because it wouldn't
kill him to leave the coat open for a few minutes. When
Plaintiff passed Moore again, Moore threatened Plaintiff with
segregation if he did not leave his coat unzipped.
month later, on October 16, 2015, Plaintiff was going to the
law library on a call pass. He was not wearing his jacket
because it was in the laundry. Moore asked him where the
jacket was, but Plaintiff declined to answer. (Doc. 1, p. 9).
Plaintiff had written two grievances on Moore for the first
two incidents, and he wrote to Warden Hunter with an urgent
request to speak with him. As a result, Plaintiff had been
called to speak with Logston (Internal Affairs) to discuss
his complaints, and he was under the impression that Moore
would be warned or investigated, however, nothing further was
done. (Doc. 1, pp. 10-11).
on October 18, 2015, while Plaintiff was on his way to Health
Care, Moore “harassed” him and shook him down
again, while Sgt. Grier watched. Two other inmates had just
passed by without being searched. Plaintiff believed Moore
targeted him because he had written three grievances on Moore
by that time. (Doc. 1, p. 9). Moore had Plaintiff unzip his
jacket, and Moore opened up Plaintiff's pants pocket.
Moore asked where Plaintiff's jacket had been the other
day, since he thought Plaintiff had to have it at all times.
Plaintiff said it was in the laundry, and he had not expected
to be called out for library that day. As with the other
incidents, Moore failed to issue a shakedown slip.
claims that Moore was unconcerned about Plaintiff's
health issues and only continued to “harass” him
in order to look good in front of his superiors. (Doc. 1, p.
7). He contends that Moore's treatment of him was an
“abuse of his authority, ” which was allowed to
continue when Grier and Christopher failed to intervene.
(Doc. 1, p. 9).
Etchin and Counselor Nance never responded to Plaintiff's
grievances against Moore. (Doc. 1, pp. 10-11). Plaintiff
explained his problems with Moore to Ms. Stone (mental health
therapist) on October 22, 2015, and asked her to notify Lt.
Pearl about the ongoing harassment, but Plaintiff heard
nothing further. (Doc. 1, p. 11). Plaintiff had previously
written to Pearl to complain about Moore but had received no
seeks monetary damages for the “deliberate
indifference, harassment, pain & suffering, mental
anguish & distress, abuse of authority, &
unprofessionalism” he suffered. (Doc. 1, p. 14).
Review Pursuant to 28 U.S.C. § 1915A
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:Eighth Amendment claim against Moore
for deliberate indifference to Plaintiff's medical
condition of anemia, and/or for subjecting him to
unconstitutional conditions of confinement, by requiring him
to leave his jacket unzipped while walking in cold weather on
Count 2:Eighth Amendment cl aim against
Moore for harassment, for targeting Plaintiff to be
questioned and searched on three occasions;
Count 3:First Amendment retaliation claim
against Moore, for subjecting Plaintiff to searches and
requiring him to leave his jacket unzipped, after Plaintiff
filed grievances against Moore for the same conduct;
Count 4:Claims against Christopher and Grier
for witnessing two of the incidents with Moore, yet failing