United States District Court, S.D. Illinois
COREY TRAINOR, # B-51552, and MICHAEL TURNER, # K-51650, Plaintiffs,
LARRY GEBKE, ROBERT C. MUELLER, MONICA CHRISTIANSON, and OFFICER ROVENSTEIN, Defendants.
MEMORANDUM AND ORDER
DAVID R. HERNDON, UNITED STATES DISTRICT JUDGE.
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.
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).
§ 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 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).
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
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.
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,
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.
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).
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. 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.
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.
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).
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.
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).
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,
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).
seek compensatory and punitive damages, as well as injunctive
and declaratory relief. (Doc. 30, p. 18).
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.
1: First Amendment retaliation claim against Christianson,
for diverting Trainor's newspapers to other inmates and
sending Trainor's photograph package to Internal ...