Russell v. Chief Downey et al
MERIT REVIEW OPINION entered by Chief Judge James E Shadid on 3/13/14. Plaintiff's motion for leave to proceed in forma pauperis 5 is DENIED as MOOT. Plaintiff's Complaint is dismissed for failure to state a claim. Plaintiff must pay full docketing fee. This case is closed and clerk is directed to enter a judgment. See written Opinion. Copy of Opinion to Plaintiff Mike D Russell, 2008-040842, Cook County Jail, PO Box 089002, Chicago, IL 60608. (TC, ilcd)
Thursday, 13 March, 2014 02:30:44 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MIKE D. RUSSELL,
OFFICIAL STEVENSON, CORRECTIONAL
OFFICER HANSON, CORRECTIONAL
OFFICER KRUMWEIDE, SERGEANT
WOODS, SERGEANT TODD, CORPORAL
BRIGHT, CORRECTIONAL OFFICER
SMITH, TIMOTHY F. BUKOWSKI, CHIEF
DOWNEY, and ASSISTANT CHIEF
) No.: 13-2268-JES-DGB
MERIT REVIEW OPINION
JAMES E. SHADID, Chief U.S. District Judge:
This cause is before the Court for a merit review, pursuant to 28 U.S.C. § 1915A, of
Plaintiff Mike D. Russell’s claims.
MERIT REVIEW UNDER 28 U.S.C. § 1915(A)
Under 28 U.S.C. § 1915(e)(2) and § 1915A, the Court is required to carefully screen a
complaint filed by a plaintiff who seeks to proceed in forma pauperis. The Court must dismiss a
complaint, or a portion thereof, if the plaintiff has raised claims that are legally “frivolous or
malicious,” that fails to state a claim upon which relief may be granted, or that seeks monetary
relief from a defendant who is immune from such relief. Id. The test for determining if an action
is frivolous or without merit is whether the plaintiff can make a rational argument on the law or
facts in support of the claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to
state a claim for relief if the complaint does not allege “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); Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009).
In reviewing the complaint, the Court accepts the factual allegations as true and liberally
construes them in plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013).
Conclusory statements and labels are insufficient. Fed. R. Civ. P. 8; Schatz v. Republican State
Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)(holding that, in order to determine if a
complaint states a plausible claim, the court must take non-conclusory, non-speculative facts as
true, draw all reasonable inferences in the pleader’s favor, and isolate and ignore statements that
simply rehash claim elements or offer only legal labels and conclusions). Instead, sufficient facts
must be provided to “state a claim for relief that is plausible on its face.” Alexander v. United
States, 721 F.3d 418, 422 (7th Cir. 2013)(internal quotation omitted).
Russell is a pretrial detainee who is currently being housed at the Cook County Jail while
he awaits trial. From July 6, 2012 through September 11, 2013, Russell was held at the Jerome
Combs Detention Center in Kankakee, Illinois (“Jerome Combs”). For approximately sixty days
while at Jerome Combs, Russell was housed in segregation.
Russell claims that, while in segregation at Jerome Combs, Defendants, who are all
officials or employees at Jerome Combs, only allowed him out of his cell for one hour per day.
How Russell spent that one hour out of his cell was up to him. Russell could shower, exercise in
the yard, or visit the law library during this one hour time period.
Russell alleges that being forced to choose between an hour’s exercise time in the yard
and an hour’s time in the law library violated his constitutional rights. Specifically, Russell
contends that Defendants’ actions deprived him of his First Amendment right of access to the
courts. Russell states that, because he had to choose between exercise and defending himself in a
suit in which he was a criminal defendant, he had to discontinue representing himself in his
In addition to alleging a First Amendment claim, Russell alleges that the
supervisors at Jerome Combs are liable to him under the doctrine of respondeat superior pursuant
to Illinois law.
“The First Amendment right to petition the government for redress of grievances includes
the right of access to the courts.” Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir. 2009)(citing
cases). “[P]ersons in prison, like other individuals, have the right to petition the Government for
redress of grievances which, of course, includes ‘access of prisoners to the courts for the purpose
of presenting their complaints.’” Cruz v. Beto, 405 U.S. 319, 321 (1972)(quoting Johnson v.
Avery, 393 U.S. 483, 485 (1969). While the right of access to the courts requires prison officials
to provide prisoners with the necessary tools “to attack their sentences, directly or collaterally,”
and “to challenge the conditions of their confinement,” Lewis v. Casey, 518 U.S. 343, 355
(1996), it is not an abstract, freestanding right to legal assistance. Id. at 351. A prisoner asserting
a denial of access claim must show an “actual injury” in the form of interference with a
“nonfrivolous legal claim.” Id. at 353.
“In other words, the right of access to the courts is tied to and limited by a prisoner’s
right to ‘vindication for a separate and distinct right to seek judicial relief for some wrong.’”
Lehn v. Holmes, 364 F.3d 862, 865 (7th Cir. 2004)(quoting Christopher v. Harbury, 536 U.S.
403, 415 (2002)). A plaintiff must identify the non-frivolous, arguable underlying claim that he
wished to, but could not, assert because of the defendant’s interference with his access to the
courts. Lewis, 518 U.S. at 351.
However, there is no constitutional violation when a prisoner has time to re-submit legal
documents in a court despite impediments caused by prison officials. Richardson v. McDonnell,
841 F.2d 120, 122 (5th Cir. 1988). Moreover, a civil rights claim cannot be based on “minor and
short-lived impediments to access” in the absence of actual prejudice. Chandler v. Baird, 926
F.2d 1057, 1063 (5th Cir. 1991).
In the instant case, Russell has failed to state a cause of action for denial of access to the
courts because he has failed to allege an actual legal injury resulting from Defendants’ alleged
deprivation. Russell has not alleged what non-frivolous legal claim he wanted to pursue but
could not based upon Defendants’ interference other than alleging that he can no longer represent
himself in his pending criminal matter. Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009)
(holding that a plaintiff must explain “the connection between the alleged denial of access to
legal materials and an inability to pursue a legitimate challenge to a conviction, sentence, or
prison conditions.”). That allegation is not enough for Russell to state a cause of action upon
which relief can be granted for denial of access to the courts in violation of his First Amendment
Furthermore, because Russell sought to represent himself in a criminal case but had to
withdraw because of the alleged lack of access to the law library, Russell’s criminal court,
presumably, appointed counsel to represent him in that criminal case. If he is represented,
Russell cannot maintain a denial of access to the courts claim. Martin v. Tyson, 845 F.2d 1451,
1456 (7th Cir. 1988); United States v. Sykes, 614 F.3d 303, 311 (7th Cir. 2010)(holding that the
Constitution does not require that a plaintiff be provided with legal resources in addition to a
court appointed attorney).
Finally, Russell seeks monetary damages as a result of Defendants’ alleged denial of his
right of access to the courts. However, the Seventh Circuit has explained the difficulty with an
inmate obtaining damages for a denial of access to the courts claim unless and until that prisoner
has obtained a reversal or a vacation of his conviction because such a claim would be barred by
the Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 383 (1994). Burd v. Sessler, 702
F.3d 429,433-34 (7th Cir. 2012). That has not yet happened as Russell is still a pretrial detainee
awaiting trial. And, because Russell is no longer at Jerome Combs but has been transferred to
the Cook County Jail, injunctive relief as a remedy is no longer available to him either.
Accordingly, the Court finds that Russell’s Complaint fails to state a First Amendment claim for
denial of access to the courts upon which relief can be granted. Clifton v. Lappin, 2010 WL
4136450, * 4 (W.D. La. Oct. 4, 2010)(dismissing the plaintiff’s complaint because he had wholly
failed to allege that he suffered any actual legal prejudice as a result of the defendants’ actions);
Decker v. McDonald, 2010 WL 1424322, * 12-13 (E.D. Tex. Jan. 11, 2010)(same).
As for Russell’s state law claim, the Court declines to exercise jurisdiction over that
claim to the extent that he even possesses such a claim. The Seventh Circuit has explained that,
generally, district courts should dismiss, without prejudice, supplemental state law claims once
all of the federal claims have been dismissed. Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th
Cir. 1999). Although exceptions to this general proposition exist, Wright v. Associated Ins. Cos.,
Inc., 29 F.3d 1244, 1251 (7th Cir. 1994)(setting forth the exceptions), none of those exceptions is
relevant here. Accordingly, the Court dismisses Russell’s supplemental state law claim—to the
extent it exists—without prejudice.
IT IS, THEREFORE, ORDERED that:
Plaintiff’s motion for leave to proceed in forma pauperis  is DENIED AS
MOOT as the Court has previously granted Plaintiff’s motion  to proceed in forma
Plaintiff Mike D. Russell’s Complaint is dismissed for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. § 1915A. Any further
amendment to the Complaint would be futile because Plaintiff’s claim is not cognizable.
This dismissal shall count as one of Plaintiff’s three allotted “strikes”
pursuant to 28 U.S.C. Section 1915(g).
Plaintiff must still pay the full docketing fee even though his case has been
The agency having custody of Plaintiff shall continue to make monthly
payments to the Clerk of the Court as directed in the Court’s prior Order.
If Plaintiff wishes to appeal this dismissal, he must file a notice of appeal with
this Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a). A motion for
leave to appeal in forma pauperis should set forth the issues Plaintiff plans to present on
appeal. Fed. R. App. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for
the $505.00 appellate filing fee irrespective of the outcome of the appeal.
This case is, therefore, closed, and the clerk is directed to enter a judgment
pursuant to Federal Rule of Civil Procedure 58. The Clerk of the Court is directed to
record Plaintiff’s strike in the three-strike log.
Entered this 13th day of March 2014.
_____ /s James E. Shadid_____________________
JAMES E. SHADID
CHIEF UNITED STATES DISTRICT JUDGE
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