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Thurman v. Doe

United States District Court, S.D. Illinois

May 10, 2018

DAVID THURMAN, # B36829, Plaintiff,
v.
JOHN/JANE DOE, Defendant.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE.

         Plaintiff David Thurman, an inmate of the Illinois Department of Corrections currently house at Menard Correctional Center (“Menard”), brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff claims that, on a single occasion, he was denied access to a magazine that depicted women in the nude. He names as a defendant John/Jane Doe, the unidentified correctional officer who confiscated his magazine. Plaintiff seeks monetary damages, as well as declaratory and injunctive relief.

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

(a) Screening - The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal - On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.

         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 any reasonable person would find meritless. 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. At this juncture, the factual allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

         The Complaint

         On or about November 27, 2016, [1] Plaintiff, who had recently been transferred to Menard from Stateville Correctional Center (“Stateville”), “was called to property.” (Doc. 1, p. 9). When Plaintiff arrived, John/Jane Doe, a correctional officer working in the property department, told Plaintiff a magazine he attempted to transfer from Stateville had been confiscated because it depicted penetration. Id. According to Plaintiff, the magazine contained nude photographs of women, but did not depict penetration. (Doc. 1, pp. 9, 13).

         On November 27, 2016, Plaintiff filed a grievance pertaining to John/Jane Doe confiscating his magazine.[2] (Doc. 1, p. 13). Plaintiff claimed that the confiscation was not authorized because the magazine was a “nude magazine with women only in it no penetration.” Id. The grievance was denied by J. Clendenin, a counselor, on the ground that the magazine was “contraband due to penetration in it.” Id. Plaintiff's grievance was subsequently considered by the Larissa Wandro, a grievance officer. (Doc. 1, p. 12). Wandro concluded that Plaintiff's claims pertaining to the confiscated magazine were unsubstantiated and recommended denying the grievance. Id. The Chief Administrative Officer concurred with Wandro's recommendation. Id. Plaintiff appealed to the Director, but his appeal was denied as untimely. (Doc. 1, p. 11). Plaintiff filed an additional grievance on December 8, 2016. (Doc. 1, p. 15). Plaintiff indicated that he wanted the Publication Review Committee to evaluate the magazine and provide a written explanation of its findings. Id. As to this request, the grievance counselor stated, “Personal Property has the same ban list that the Publication Review Officer has so the magazines are a dead issue.” Id.

         Plaintiff contends that the subject confiscation was not “random” because it is “their” policy to allow correctional officers in the personal property department to confiscate restricted publications. (Doc. 1, p. 9). Plaintiff contends that the confiscation violated the Illinois Administrative Code because (1) the Chief Administrative Officer did not concur with the decision of the publications review officer (see Ill. Admin. Code tit. 20 §525.230 (d)) and (2) Plaintiff did not receive a written explanation pertaining to the confiscation (see Ill. Admin. Code tit. 20 §525.230(c)). Id. Plaintiff also contends that the confiscation violated his First and Fourteenth Amendment rights. Finally, Plaintiff contends that his grievances pertaining to the matter were mishandled. Id.

         Discussion

         Based 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 regarding their merit. ...


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