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Haywood v. Tubbs

United States District Court, S.D. Illinois

April 2, 2018

JOHN D. HAYWOOD, # B-44617, Plaintiff,
v.
C/O TUBBS, MRS. CUNNINGHAM, and WARDEN GOINGS, Defendants.

          MEMORANDUM AND ORDER

          MICHAEL J. REAGAN CHIEF JUDGE UNITED STATES DISTRICT COURT

         Plaintiff, currently incarcerated at Lawrence Correctional Center (“Lawrence”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. On March 2, 2018, this case was severed from Plaintiff's original action, which is now captioned as Haywood v. Finnerman, Case No. 18-21-MJR-SCW (S.D. Ill., filed Jan. 4, 2018). (Doc. 1). The claims contained in this severed action arose during Plaintiff's incarceration at Lawrence, and are as follows:

Count 11: Eighth Amendment deliberate indifference claim against Tubbs for refusing to honor Plaintiff's medical permits, and against Tubbs, Goings, and Cunningham for confiscating and/or cancelling the medical permits at Lawrence in 2016;
Count 12: First Amendment retaliation claim against Tubbs, for shaking down Plaintiff's cell, destroying his commissary property, and refusing to honor Plaintiff's medical permits after Plaintiff filed grievances against Tubbs in 2016 at Lawrence.

(Doc. 1, p. 12).

         This case is now before the Court for a preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A.

         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 Plaintiff's claims survive threshold review under § 1915A.

         The Complaint

         The allegations in the Complaint that relate to Counts 11 and 12 are summarized below. Back in 1995, while Plaintiff was a prisoner at Robinson Correctional Center, he developed a tumor on his left foot, which was eventually diagnosed as bone cancer. His foot was partially amputated. He also suffered back injuries in 1995 and 2006, which left him unable to walk and in need of a wheelchair for mobility. (Doc. 2, pp. 5-6).

         On March 9, 2016, Plaintiff was transferred from the Menard Correctional Center to Lawrence. (Doc. 2, pp. 15-18). Lawrence physician Dr. Coe (who is not a Defendant in this action) issued Plaintiff permits for a low bunk, low gallery, a second mattress, ice, daily cleaning of his cell, and a wheelchair. (Doc. 2, p. 19).

         In July 2016, C/O Tubbs began working on Plaintiff's housing wing. Tubbs refused to give Plaintiff ice, despite the fact Plaintiff had the medical permit and all other inmates were given ice. Tubbs stopped Plaintiff and his attendant from using cleaning supplies to clean Plaintiff's cell, because the permit did not say “cleaning supplies.” (Doc. 2, p. 19). Plaintiff had Dr. Coe change the permit, but then Tubbs said it did not include bleach or pink soap. Finally Tubbs asked to see all Plaintiff's permits. When Plaintiff handed them over, Tubbs wrote on them that they were canceled.

         Plaintiff wrote a series of 25 grievances against Tubbs. Later on, Tubbs stopped Plaintiff and his attendant from cleaning the shower chair, saying he would do it. Tubbs began “shaking down” Plaintiff's attendant, and some of his items disappeared, so the attendant quit. Plaintiff reported the problems with Tubbs to his counselor, a Lieutenant, a Major, and Wardens. Warden Goings told Plaintiff to stop writing ...


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