Opinion
CASE NUMBER 11 C 5911
09-06-2011
Sylvester Jamison (#2009-1116260) v. Bryant, et al.
Name of Assigned Judge
or Magistrate Judge
Sitting Judge if Other
than Assigned Judge
DOCKET ENTRY TEXT Plaintiff is given 30 days from the date of this order either to file an in forma pauperis application on the enclosed form with the information required by § 1915(a)(2) or to pay the full $350 filing fee. The complaint on file is dismissed without prejudice. Plaintiff is granted thirty days to submit an amended complaint (plus a judge's copy and service copies) and an in forma pauperis application on the enclosed form with the information required by § 1915(a)(2) or to pay the full $350 filing fee. The Clerk is directed to send Plaintiff an in forma pauperis application, an amended civil rights complaint form with instructions, and a copy of this order. If Plaintiff does not timely comply with this order, this case shall be dismissed on the understanding that Plaintiff does not wish to proceed with this action in federal court at this time.
[x] [For further details see text below.]
Docketing to mail notices.
STATEMENT
Plaintiff, Sylvester Jamison, a pretrial detainee at Cook County Jail, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983.
Although the Clerk has accepted this pro se complaint for docketing pursuant to Rule 5(e) of the Federal Rules of Civil Procedure, Plaintiff has neither paid the filing fee nor filed a petition for leave to file in forma pauperis. Plaintiff filed a certification and accounting of his trust fund account but not an in forma pauperis application on the form required by the rules of this court.
The Prison Litigation Reform Act (PLRA) requires all inmates to pay the full filing fee. The Court must assess an initial partial filing fee on all inmates who bring suit in an amount that is 20% of the greater of:
(A) the average monthly deposits in the prisoner's account; or28 U.S.C. § 1915(b)(1).
(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.
The Court will authorize prison officials to deduct the initial filing fee payment directly from Plaintiff's trust fund account. Thereafter, correctional authorities having custody of Plaintiff will have authority (and are required) to make monthly payments to the Court of 20% of the preceding month's income credited to the trust fund account until such time as the full filing fee is paid.
To enable the Court to make the necessary initial assessment of the filing fee, Plaintiff must "submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined." 28 U.S.C. § 1915(a)(2). If Plaintiff wishes to proceed with this case in forma pauperis he must file an in forma pauperis application on the form required by the rules of this court together with a certified copy or copies of his trust fund statements reflecting all activity in his accounts in the immediately preceding six-month period.
Furthermore, under 28 U.S.C. § 1915A, the Court is required to conduct a prompt initial review of prisoner complaints against governmental entities or employees.
Plaintiff alleges that he was placed in segregation from June 29, 2011 through July 6, 2011, without a hearing to find him guilty. During his time in segregation, he was only allowed out of his cell for one hour a day, denied visitation, denied law library time, and denied commissary.
It is well established that pro se complaints are to be liberally construed. Kaba v. Stepp, 458 F.3d 678, 681, 687 (7th Cir. 2006). Pro se submissions are held to a less stringent standard than formal pleadings drafted by lawyers. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to " 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.' " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 667 (7th Cir. 2008).
To satisfy the notice pleading requirements of Fed. R. Civ. P. 8(a)(2), the plaintiff must only state his basic legal claim and provide "some indication . . . of time and place." Thompson v. Washington, 362 F.3d 969, 971 (7th Cir. 2004). Nevertheless, the factual allegations in the complaint must be enough to raise a right to relief above the speculative level. Bell Atlantic Corp., 550 U.S. at 555. "The complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010) (citing Ashcroft v. Iqbal, _ U.S. _, 129 S. Ct. 1937, 1949 (2009)).
It is unclear what claim(s) Plaintiff is attempting to raise against the named Defendants. Plaintiff includes multiple conclusory allegations, for example, he was subjected to inhumane conditions, the Defendants conspired to place in segregation, and he was denied due process. However, he fails to include any factual allegations that would put the Defendants on notice of what claim he is actually bringing against which Defendant and the underlying facts to at least minimally support his conclusory allegations.
Furthermore, as to Plaintiff's one claim that he has minimally plead, the denial of due process by being placed in segregation, the allegations fails to state a claim. Placement in disciplinary segregation does not implicate a liberty interest unless it poses an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484-86 (1995); Townsend v. Fuchs, 522 F.3d 765, 771 (7th Cir. 2008).
Here, Plaintiff specifically pleads that he was in disciplinary segregation for nine days, he had commissary restrictions, he had contact visitation restrictions, and law library restrictions. These allegations do not constitute an "atypical and significant hardship" in relation to Plaintiff's ordinary incidents of prison life, see Sandin, 515 U.S. at 486 (30 days in segregation in conditions that mirrored conditions for in unmates in administrative segregation and protective custody); Lekas v. Briley, 405 F.3d 602, 612 (7th Cir. 2005) (90 days in segregation during which prisoner was unable to participate in prison programs, lost wages, denied visitation, telephone and commissary privileges).
Lastly, it does not appear that Plaintiff has fully exhausted his administrative remedies prior to filing suit.
Exhaustion of administrative remedies, pursuant to the Prison Litigation Reform Act, is required for all prisoner suits seeking redress for prison circumstances or occurrences, regardless of whether they involve general circumstances of incarceration or particular episodes. See Porter v. Nussle, 534 U.S. 516 (2002). Under 42 U.S.C. § 1997e(a), the court is directed to dismiss a suit brought with respect to jail/prison conditions if the court determines that plaintiff has failed to exhaust his administrative remedies. Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532 (7th Cir. 1999).
A prisoner must take all the steps required by the prison's grievance system in order to exhaust his administrative remedies properly. Ford v. Johnson, 362 F.3d 395, 397 (7th Cir. 2004); Pozo v. McCaughtry, 286 F.3d 1022, 1023-24 (7th Cir. 2002). Moreover, exhaustion is a precondition to filing suit, so that a prisoner's attempt to exhaust available administrative remedies in the midst of litigation is insufficient. See Ford, 362 F.3d at 398; Perez, 182 F.3d at 536-37.
Plaintiff states that he filed a grievance to exhaust his administrative remedies. However, he does not allege that he fully exhausted the available administrative remedies, through the appeal process. Furthermore, in light of proximity of time between the alleged placement in segregation and the filing of his complaint, it does not appear that Plaintiff has fully exhausted his administrative remedies. Plaintiff cannot complete the grievance process after he filed his complaint.
For the foregoing reasons, the Court dismisses the complaint on file without prejudice. Plaintiff is granted thirty days in which to file an amended complaint. Plaintiff must write both the case number and the judge's name on the amended complaint, sign it, and return it to the Prisoner Correspondent. As with every document filed with the court, Plaintiff must provide an extra copy for the judge; he must also submit a sufficient number of copies for service on each Defendant named in the amended complaint.
Plaintiff is cautioned that an amended pleading supersedes the original complaint and must stand complete on its own. Therefore, all allegations must be set forth in the amended complaint, without reference to the original complaint. Any exhibits Plaintiff wants the court to consider in its threshold review of the amended complaint must be attached, and each copy of the amended complaint must include complete copies of any and all exhibits.
Plaintiff is also alerted to the risks under Fed. R. Civ. P. Rule 11 (sanctions for frivolous pleadings) and 28 U.S.C. § 1915(g) (the "strike-out" statute). The Prison Litigation Reform Act of 1995 (PLRA), enacted on April 26, 1996, provides that a prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Accordingly, if Plaintiff files an amended complaint that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, he may be assessed a strike pursuant to 28 U.S.C. § 1915(g).
In summary, Plaintiff must, on or before 30 days from the date of this order, either file an in forma pauperis application on the enclosed form with the information required by § 1915(a)(2) or pay the full $350 filing fee and submit an amended complaint. If Plaintiff does not timely comply with this order, this case shall be dismissed on the understanding that Plaintiff does not wish to proceed with this action in federal court at this time.