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Lewis v. Olson

United States District Court, C.D. Illinois

May 17, 2018

JERRY LEE LEWIS, Plaintiff,
v.
MICHELLE OLSON, DAN FRY, KIRK, MR. BANTA, Defendants.

          MERIT REVIEW OPINION

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE

         Plaintiff filed this case pro se from the Illinois River Correctional Center. The case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A.[1] This statute requires the Court to review a complaint filed by a prisoner to identify the cognizable claims and to dismiss part or all of the complaint if no claim is stated.

         In reviewing the Complaint, the Court accepts the factual allegations as true, liberally construing them in Plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). However, conclusory statements and labels are insufficient. Enough facts must be provided to "'state a claim for relief that is plausible on its face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th Cir. 2013)(quoted cite omitted).

         Plaintiff alleges that Defendants Kirk and Fry have prevented Plaintiff from using the grievance procedure by taking Plaintiff's grievances and not processing them. Defendant Fry also allegedly did nothing to assist Plaintiff in Plaintiff's legal pursuits and put Plaintiff in for a transfer in retaliation for a lawsuit Plaintiff had filed. The grievances that Plaintiff was able to file were allegedly not handled properly.

         The allegations against Defendants Kirk and Fry about interfering with Plaintiff's ability to use the prison grievance procedure do not state a constitutional claim. Plaintiff does not have a constitutional right to a prison grievance procedure. Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).

         Plaintiff's allegation that Defendant Fry arranged for Plaintiff's transfer in retaliation for another of Plaintiff's lawsuits is too vague and conclusory to state a claim. The only other lawsuit Plaintiff had going at that time was a lawsuit about the conditions of confinement in Western Illinois Correctional Center. Lewis v. Watson, 17-cv-3175 (C.D. Ill.). The Warden is the only Defendant in that case (17-cv-3175), and Plaintiff's transfer did not occur until months after that case was served, according to the dockets. Plaintiff offers no facts which might allow an inference that Defendant Fry knew about the case or was motivated by retaliation about that case. Additionally, Plaintiff does not explain how a transfer from Western Illinois Correctional Center to Illinois River Correctional Center was adverse-both prisons are medium security prisons, and Plaintiff allegedly received reading classes in Illinois River, something which he was denied in Western. Surita v. Hyde, 665 F.3d 860, 878 (7th Cir. 2011)(First Amendment retaliation “claims must be based on a concrete adverse action which would deter a person of ‘ordinary firmness' from exercising a First Amendment right.”). Defendants Fry and Kirk will be dismissed without prejudice for failure to state a claim against them.

         Plaintiff makes no specific allegations against Officer Banta, who is listed in the caption but not in the body of the complaint. Officer Banta will also be dismissed, without prejudice.

         The last Defendant to discuss is Defendant Olson. Plaintiff alleges that, in retaliation for Plaintiff's grievances against Defendant Olson, Defendant Olson allegedly interfered with Plaintiff's ability to access legal materials and either refused or was unable to help Plaintiff with his legal research. Defendant Olson also allegedly did not have complete books of statutes or the proper legal forms that Plaintiff needed to pursue post-conviction relief.

         The Court cannot rule out a First Amendment claim against Defendant Olson for interfering with Plaintiff's access to legal resources in retaliation for Plaintiff's grievances against Defendant Olson, though exactly what the retaliation was is unclear. Defendant Olson cannot be liable solely because the law library is inadequate. The Court also cannot rule out a First Amendment claim against Defendant Olson for allegedly interfering with Plaintiff's ability to file for post-conviction relief. Ortloff v. United States, 335 F.3d 652, 656 (7th Cir. 2003)(“[A] right to access-to-courts claim exists only if a prisoner is unreasonably prevented from presenting legitimate grievances to a court; various resources, documents, and supplies merely provide the instruments for reasonable access and are not protected in and of themselves.”).

         IT IS ORDERED:

         1) Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states First Amendment claims against Defendant Olson for retaliating against Plaintiff for Plaintiff's grievances and for interfering with Plaintiff's efforts to pursue post-conviction relief.

         2) Defendants Fry, Kirk, and Banta are dismissed without prejudice for failure to state a claim against them.

         3) This case proceeds solely on the claims identified in this paragraph. Any additional claims shall not be included in the case, except at the Court's discretion on motion by a party for good cause shown or pursuant to Federal Rule of Civil Procedure 15.

         4) This case is now in the process of service. Plaintiff is advised to wait until counsel has appeared for the Defendant before filing any motions, in order to give Defendant notice and an opportunity to respond to those motions. Motions filed before Defendant's counsel has filed an appearance will generally be denied as premature. Plaintiff ...


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