Harmon v. Walton et al

Filing 11

ORDER: Plaintiff has failed to state a viable claim, and the complaint is DISMISSED without prejudice. Plaintiff is GRANTED leave to file an amended complaint, in accordance with this Memorandum and Order, within THIRTY DAYS of the date of entry of t his Order. IT IS FURTHER ORDERED that any new complaint filed by Plaintiff that is not in strict compliance with this order shall be STRICKEN.IT IS FURTHER ORDERED that upon conclusion of the thirty-day period, should Plaintiff fail to refile his complaint, this case will be closed for failure to comply with an order of this Court. (Amended Pleadings due by 6/17/2016). Signed by Chief Judge Michael J. Reagan on 5/18/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
THEODORE HARMON,

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Plaintiff,
vs.
J.S. WALTON,
UNKNOWN PARTIES,
WILLIAM MAYS,
BRAD WEESEL, and
RUNGY,
Defendants.

CIVIL NO. 15-cv-1351-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Theodore Harmon is currently incarcerated in the United States Penitentiary in
Marion (“Marion”). He brings this action for alleged violations of his constitutional rights by
persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971). He claims that Defendants have violated his First Amendment rights by
prohibiting him from receiving a certain publication (or publications).
This matter is now before the Court for a preliminary review of Oliver’s complaint
pursuant to 28 U.S.C. § 1915A. Under § 1915A, the Court shall review a “complaint in a civil
action in which a prisoner seeks redress from a governmental entity or officer or employee of a
government entity.” During this preliminary review under § 1915A, the Court “shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint,” if the complaint “is
frivolous, malicious, or fails to state a claim on which relief may be granted” or if it “seeks
monetary relief from a defendant who is immune from such relief.” Upon careful review of the

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complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority
under § 1915A. Portions of this action are subject to summary dismissal.
On an unspecified date, an unspecified publication addressed to Plaintiff was received by
the mailroom at Marion. 1 This publication was rejected by Marion officials because it contained
nudity and/or sexually explicit content. Defendants John/Jane Doe #5 and/or #6 (mailroom
employees) searched the incoming publication and determined that it should not be delivered to
Plaintiff. (Doc. 1 at 10.) Defendant Rungy (head of the Publication Review Committee), along
with committee members Defendants John/Jane Does #2, #3, and #4, then reviewed the
publication and again rejected it. (Id.) Finally, Defendant Walton (Marion Warden) reviewed
and rejected the publication. (Id.)
Plaintiff filed a grievance over the rejection of his publication, but it was denied by
Defendant Weesel (counselor) on April 27, 2015. Defendant John/Jane Doe #1 (facility Remedy
Coordinator) rejected his grievance because he did not attempt an informal resolution or provide
necessary evidence. Plaintiff searched for Defendant Weesel from May 8, 2015 to May 18, 2015,
in order to request from him a new administrative remedy request form. In the meantime,
Plaintiff sought review of his grievance by other prison officials, all of whom rejected it. His
grievance was finally accepted by the East Unit Management team member, but the
Administrative Remedy Coordinator rejected it for being untimely. When Plaintiff went to
Weesel’s office to request an appeal form, Weesel told Plaintiff that the Administrative Remedy
Coordinator’s decision was not appealable and refused to give him the form.
In addition to his First Amendment Bivens claim, Plaintiff asserts that the Defendants

1

The opening paragraph to the statement of claim states: “On or about [blank space], the mailroom, at the U.S.P.
Marion, received a publication addressed to the Plaintiff (from the publisher of said publication), entitled: [blank
space].” Plaintiff was presumably expected to note the date the publication was received, as well as the name of the
publication, in the blank spaces.

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unlawfully conspired to commit a civil rights violation, as prohibited by 42 U.S.C. § 1985. (Id. at
12.)
Plaintiff seeks compensatory and punitive damages. (Id. at 13). Further, he has filed a
motion for a temporary restraining order (“TRO”) and/or preliminary injunction (Doc. 3),
directing Defendants to follow the regulations at C.F.R 540 and Bureau of Prisons policy
statement 5266.11. Those provisions contain the exemptions for publications containing nudity
illustrative of medical, educational, or anthropological content.
Under § 1915A, the Court is required to conduct a preliminary threshold review of the
complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief from an immune defendant. 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 “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

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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).
The complaint is subject to dismissal. While the complaint fails to mention the date on
which the prison received the prohibited publication, this error is not fatal, as Plaintitff provides
dates for other events described in his complaint sufficient to assure the Court that there are not
obvious statute of limitations problems. However, the complaint’s failure to identify and describe
(in any detail) the publication (or publications) that was (or were) allegedly rejected by Marion
officials does render Plaintiff’s complaint violative of § 1915A for failure to state a claim upon
which relief may be granted. Without such information, the complaint fails to provide adequate
notice to a number of the Defendants sufficient to allow them to properly answer the complaint.
Accordingly, as pleaded, Plaintiff has failed to state a viable claim, and the complaint is
DISMISSED without prejudice. Plaintiff is GRANTED leave to file an amended complaint, in
accordance with this Memorandum and Order, within THIRTY DAYS of the date of entry of
this Order.
IT IS FURTHER ORDERED that any new complaint filed by Plaintiff that is not in
strict compliance with this order shall be STRICKEN.
IT IS FURTHER ORDERED that upon conclusion of the thirty-day period, should
Plaintiff fail to refile his complaint, this case will be closed for failure to comply with an order of
this Court. FED. R. CIV. P. 11; see generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997);
Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994).

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IT IS SO ORDERED.
DATED: May 18, 2016
s/ MICHAEL J. REAGAN
Michael J. Reagan
Chief Judge
United States District Court

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