United States District Court, S.D. Illinois
JOHN D. HAYWOOD, # B-44617, Plaintiff,
C/O TUBBS, MRS. CUNNINGHAM, and WARDEN GOINGS, Defendants.
MEMORANDUM AND ORDER
MICHAEL J. REAGAN CHIEF JUDGE UNITED STATES DISTRICT COURT
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).
case is now before the Court for a preliminary review of the
Complaint pursuant to 28 U.S.C. § 1915A.
§ 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 Plaintiff's claims
survive threshold review under § 1915A.
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).
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).
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.
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 ...