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Minerly v. Holt

United States District Court, S.D. Illinois

July 11, 2017

ROBERT MINERLY, #K63470, Plaintiff,
v.
CECIL HOLT, KAREN KIRSCHKE, DENISE MINOR, JASON GARNETT, And UNKNOWN PARTY, Defendants.

          MEMORANDUM AND ORDER

          Staci M. Yandle, United States District Court District Judge

         In July 2016, Plaintiff Robert Minerly, an inmate who is currently incarcerated at Big Muddy River Correctional Center (“Big Muddy”), filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging that certain Big Muddy officials conspired to retaliate against him for filing a grievance pertaining to the prison's “orange crush” tactical team. See Minerly v. Nalley, et al., Case No. 3:16-cv-00782-MJR-SCW (“2016 Civil Rights Action”). Plaintiff's 2016 Civil Rights Action is presently pending.

         Plaintiff filed the instant action on May 16, 2017, alleging that certain Big Muddy officials have retaliated against him for filing and pursuing his claims in the 2016 Civil Rights Action. In connection with these claims, Plaintiff sues Karen Kirschke (Counselor in Charge of Aftercare Program), Cecil Holt (Psychologist and Kirschke's Supervisor), Denise Minor (Lieutenant of Internal Affairs Department), Jason Garnett (Warden) and an Unknown Party (John Doe Correctional Officers with Rank of Internal Affairs Officers). Plaintiff seeks monetary damages and injunctive relief. Plaintiff has also filed a motion for preliminary injunction. (Doc. 9).

         The Complaint is before the Court for a 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).

         The Complaint

         On July 8, 2016, Plaintiff filed the 2016 Civil Rights Action. (Doc. 1, p. 2). Two days later, He was removed from the Voluntary Sex Offender Program (“VSOP”) and transferred to another wing of the prison. (Doc. 1, p. 3; Doc. 1-2, p. 4). A grievance attached to the Complaint provides the following additional information pertaining to Plaintiff's removal from VSOP:

Karen Kirschke disclosed to me a barrage of inconsistencies as to why I must be removed from the program. One reason in particular piqued my curiosities as being the truth. She said and I quote, “if a certain somebody gets wind that I'm still in the program she'll be put on the spot and will have to justify it some how.”

(Doc. 1-2, p. 4). The grievance further indicates that both Kirschke and Holt were involved in the decision to remove Plaintiff from VSOP. Id. After Plaintiff complained about being removed from VSOP, he was placed in an aftercare program that meets once a week, for an hour, in the prison chapel with Kirschke. Id. Plaintiff contends that he was removed from VSOP in retaliation for filing the 2016 Civil Rights Action. Id.

         In August 2016, after an aftercare meeting had been adjourned, Plaintiff secured declarations from inmates Mike Thomas and Daniel Vanskike for use in the 2016 Civil Rights Action. Id. Additionally, in August 2016, Plaintiff relayed instructions to certain inmates regarding how to provide Plaintiff with declarations for use in his 2016 Civil Rights Action (Bobby Barrett was asked to give instructions to Brad Boaz and Edwin Klemm). Id. Kirschke and Holt learned about Plaintiff's efforts to obtain the declarations and reported his activity to internal affairs. Id. Thereafter, several inmates (Vanskike, Foutch, and Thomas) were reprimanded by unidentified internal affairs officers (unknown John Doe Defendants), Holt, Kirscke and Minor for providing Plaintiff with statements. Id. Additionally, Plaintiff and inmate Vanskike were “kicked out” of the aftercare program. (Doc. 1, pp. 3-4). Plaintiff contends his removal from the aftercare program was also an act of retaliation. Doc. 1, p. 4). As a result of this conduct, other inmates are no longer willing to provide Plaintiff with statements pertaining to his case. Id.

         Plaintiff filed a grievance pertaining to the alleged retaliation on August 30, 2016 and mailed a copy of the grievance to Garnett. (Doc. 1, p. 5). Plaintiff's grievance was denied on September 13, 2016.[1] Id. Plaintiff's appeal was denied on October 17, 2016. Id. On October 26, 2016, Plaintiff submitted an appeal to Baldwin. Plaintiff received a final denial on April 20, 2017.

         Plaintiff asserts that the retaliation is ongoing in that he is no longer a participant in VSOP or the aftercare program. (Doc. 1, pp. 5-6). He seeks monetary damages as well ...


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