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Turnerl v. Gebke

United States District Court, S.D. Illinois

January 22, 2018



          DONALD G. WILKERSON United States Magistrate Judge.

         This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge David R. Herndon pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on Plaintiffs Motion for Class Certification (Doc. 35). For the reasons set forth below, it is RECOMMENDED the Motion for Class Certification be DENIED and the Court adopt the following findings of fact and conclusions of law.

         Findings of Fact

         Plaintiffs are inmates in the Illinois Department of Corrections who have brought this pro se civil rights action pursuant to 42 U.S.C. § 1983, claiming Defendants violated their First Amendment rights by preventing them from receiving certain publications (Doc. 32, p. 3).[1]Plaintiff Trainor filed the suit on June 14, 2017, naming himself and five other prisoners as co-plaintiffs. Co-Plaintiff Turner later signed the Complaint and affirmed he wishes to proceed with this joint action (Doc. 32, p.3). 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).

         The Complaint begins with Trainor's allegations of retaliation and violation of his First Amendment rights to receive publications through the mail. In August 2015, Trainor states he 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” (Doc. 30, p. 5). On September 1, 2015, Defendant 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” (Doc. 30, p. 5).

         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” (Doc. 30, p. 5). 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 the pictures were “inappropriate” because the subjects were “dressed in scantily clad clothes, it's classless.” (Doc. 30, p. 6).

         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. Gebke subsequently 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'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 the above facts, the Court conducted a merits review pursuant to 28 U.S.C. § 1915A, and the following claims were allowed to proceed:

Count 1: First Amendment retaliation claim against Christianson, for diverting Trainor's newspapers to other inmates and sending Trainor's photograph package to Internal Affairs, after Trainor filed a grievance against her;
Count 2: First Amendment retaliation claim against Rovenstein, for refusing to release any of Trainor's photographs to him in September 2016, because Trainor requested Rovenstein to document the confiscation of the “inappropriate” photos;
Count 3: First Amendment claim against Gebke and Mueller, for rejecting Trainor's book and magazine in August 2015, and rejecting Turner's magazine in August 2016, where the rejection was not reasonably related to legitimate penological interests, and (as to Trainor's material) was based on racially and culturally biased criteria;

On November 6, 2017, Plaintiffs Trainor and Turner filed a joint Motion for Class ...

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