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Lomako v. State Prison

June 23, 2010

JUSTIN LOMAKO, PLAINTIFF,
v.
STATE PRISON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS PLEASANT VALLEY (Doc. 22) THIRTY-DAY OBJECTION DEADLINE

Findings and Recommendations Following Screening of Fourth Amended Complaint

I. Screening Requirement

Plaintiff Justin Lomako, a former state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 7, 2007. Plaintiff voluntarily filed first, second, and third amended complaints, and on June 11, 2009, the Court issued its first screening order, which dismissed Plaintiff's third amended complaint for failure to state any claims, with leave to amend. Now pending before the Court is Plaintiff 's fourth amended complaint, filed June 30, 2009.

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity.*fn1 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.

II. Fourth Amended Complaint

Plaintiff was transferred to Pleasant Valley State Prison (PVSP) on August 8, 2005, and the events at issue in this action allegedly occurred there. Despite the Court's order informing Plaintiff that he may not proceed in this action on unrelated claims, Plaintiff again sets forth claims arising from three separate, unrelated incidents. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (plaintiff not permitted to proceed with a "mishmash of a complaint"). Because only one claim is cognizable, the Court opts to address and resolve the other claims on their merits rather than dismiss them under Federal Rule of Civil Procedure 18(a). Each incident is identified in the complaint as a claim, although Plaintiff is asserting multiple legal claims arising out of each incident. The Court will utilize Plaintiff's format for ease of reference.

A. Claim One

Upon arrival at PVSP, Plaintiff was informed that his medical chronos were not valid at that prison.*fn2 Plaintiff was eventually granted chronos but alleges it took more than ninety days to get the chronos and appliances, causing him to suffer multiple injuries. Plaintiff alleges violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

1. Due Process Violation

The Due Process Clause of the Fourteenth Amendment protects prisoners from being deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963 (1974). Plaintiff's fourth amended complaint does not state a claim for deprivation of a protected property or liberty interest without due process of law. Plaintiff was previously provided with the applicable legal standard and given the opportunity to amend. Noll v. Carlson, 809 F.2d 1446, ...


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