United States District Court, S.D. Illinois
REPORT AND RECOMMENDATION
G. WILKERSON United States Magistrate Judge.
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.
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).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).
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).
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).
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).
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. 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).
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
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
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 ...