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Trainor v. Gebke

United States District Court, S.D. Illinois

October 27, 2017

COREY TRAINOR, # B-51552, and MICHAEL TURNER, # K-51650, Plaintiffs,
v.
LARRY GEBKE, ROBERT C. MUELLER, MONICA CHRISTIANSON, and OFFICER ROVENSTEIN, Defendants.

          MEMORANDUM AND ORDER

          JUDGE DAVID R. HERNDON, UNITED STATES DISTRICT JUDGE.

         This matter is now before the Court for a merits review of the Complaint (Doc. 30) pursuant to 28 U.S.C. § 1915A. Plaintiffs are currently incarcerated at Centralia Correctional Center (“Centralia”), and have brought this pro se civil rights action pursuant to 42 U.S.C. § 1983, claiming that Defendants violated their First Amendment rights by preventing them from receiving certain publications. Plaintiff Trainor also raises a retaliation claim.

         Trainor filed the suit on June 14, 2017, naming himself and 5 other prisoners as co-Plaintiffs. Co-Plaintiff Turner later signed the Complaint and affirmed that he wishes to proceed with this joint action. Three other co-Plaintiffs voluntarily withdrew from the action, and one former co-Plaintiff was dismissed by the Court for failure to comply with a court order. (See Docs. 24, 31).

         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).

         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 “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 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. 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).

         Applying these standards, the Court finds that some of the claims survive threshold review under § 1915A. However, analysis of the remaining claims demonstrates that not all of the Defendants are properly joined in the same action. Accordingly, Trainor's retaliation claims against Christianson and Rovenstein shall be severed into a separate case.

         The Complaint

         The Complaint begins with Trainor's allegations of retaliation and violation of his First Amendment rights to receive publications through the mail. Turner also alleges that a magazine was wrongfully withheld from him. The sections of the Complaint containing allegations pertinent to the dismissed co-Plaintiffs shall be disregarded and omitted from the following summary.

         As background for the retaliation claim, Trainor alleges that he filed a grievance against Christianson (Mailroom Supervisor) for mishandling his mail. (Doc. 30, p. 4). Soon thereafter, Trainor's newspapers were delivered to offenders in other housing units instead of to him. He believes that Christianson engineered the mis-delivery of the newspapers in retaliation for his grievance against her. (Doc. 30, pp. 5, 12).

         In August 2015, Trainor ordered a novel titled “Confessions of an Industry Chic, ” by Trumain McClure. (Doc. 30, p. 5). Trainor describes the book as a fictional work about a “video vixen who gives insight on behind the scenes drama in the entertainment industry.” Id. On September 1, 2015, Gebke (Chair of the Publication Review Committee) notified Trainor that this book was denied. When Trainor questioned Gebke, he said he had not read the book, but denied it because “It's that hip-hop crap, you don't need to fill your head with that.” Id.

         Next, Gebke rejected a magazine titled “Phat Puffs, ” which Trainor describes as a “non-nude, non-obscene” publication containing ads with African-American models wearing lingerie and bikinis. Gebke's stated reason for denying “Phat Puffs” was that it contained “sexually explicit content.” Id. When Trainor questioned what about it was sexually explicit, Gebke said he could not have “big booty mags” because he “know[s] what you'll use them for.” (Doc. 30, pp. 5-6).

         In September 2016, a package of “non-nude” photographs which Trainor had ordered were delivered to Centralia's mailroom, and sent (apparently by Christianson) to Rovenstein (Internal Affairs) for review. (Doc. 30, pp. 6, 13). Rovenstein called Trainor in and said that the pictures were “inappropriate” because the subjects were “dressed in scantily clad clothes, it's classless.” (Doc. 30, p. 6). Rovenstein offered Trainor 3 of the photos, and Trainor requested a shakedown slip to verify that the pictures would be confiscated.[1] This request “upset and annoyed” Rovenstein, so he told Trainor to leave his office, and the pictures would be sent back to the mailroom to be “shipped out.” Id. Rovenstein sent the pictures back to Christianson. Christianson failed to respond to Trainor's request slips inquiring on the whereabouts of his photos.

         Trainor filed a grievance to Warden Mueller over these incidents, which Mueller denied. Trainor alleges that Mueller consented to Gebke's “censorship policy, ” which primarily excludes publications by African-American authors and those featuring “big booty” women. (Doc. 30, pp. 6-7). Trainor contrasts the denial of his requested items with publications that were allowed into Centralia, including the June 2015 issue of “Maxim” magazine. That issue contained an article entitled “Running and Gunning, ” which glorifies “kills” by “elite forces, ” and another entitled “Deadliest Gangs” depicting weapons, drugs, and dead bodies. (Doc. 30, p. 7). Also permitted are magazines such as “Playboy, ” “Vanity Fair, ” “Cosmopolitan, ” “Rolling Stone, ” and fitness and motorcycle magazines containing ads that reveal portions of female buttocks or breasts. (Doc. 30, p. 8).

         On August 24, 2016, Turner was told by Christianson that his “Rotowire Fantasy Football” magazine had been sent to Gebke for review. (Doc. 30, p. 8). Turner had been receiving this publication for years without incident. Christianson did not inform Turner of the reason why the magazine had been sent for review, which violated the Illinois Administrative Code. (Doc. 30, p. 9).

         On September 1, 2016, Gebke denied Turner permission to have the “Rotowire” magazine, stating that its detailed information could be “used as an aid in gambling.” Id. Turner had never been disciplined for gambling. In response to Turner's question about the policy, Gebke said that he allowed “Sports Illustrated, ” and Turner should order that. Turner points out that “Sports Illustrated” does not include equivalent football coverage to his desired publication. Additionally, the Fantasy Football league is internet-based, and inmates do not have internet access to engage in gambling with that league.

         Turner's grievance to Mueller over the magazine confiscation was denied. He claims that Gebke, with the “consent” of Mueller, has “established an excluded list of publications” based on “their biased and unorthodox views.” (Doc. 30, p. 10).

         Based on these facts, Plaintiffs articulate 3 claims. Count 1 asserts that Christianson and Rovenstein retaliated against Trainor because of his grievance “challenging their conduct.” (Doc. 30, p. 13). Count 2 is a First Amendment claim against Gebke for banning publications which did not pose a security threat to the institution and for singling out certain publications for censorship based on his racial and cultural biases, with no rational relationship to security concerns. (Doc. 30, pp. 13-14). Count 3 is labeled “Supervisory Liability” against Mueller, for failing to correct the constitutional violations. (Doc. 30, p. 14).

         Plaintiffs argue that the action should receive class certification, but have not filed a separate motion requesting the Court to rule on that matter. (Doc. 30, pp. 15-17).

         Plaintiffs seek compensatory and punitive damages, as well as injunctive and declaratory relief. (Doc. 30, p. 18).

         Merits Review Pursuant to 28 U.S.C. § 1915A

         Based 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: First Amendment retaliation claim against Christianson, for diverting Trainor's newspapers to other inmates and sending Trainor's photograph package to Internal ...


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