United States District Court, Northern District of Illinois, E.D
April 1, 1982
ARTHUR J. LARSON, PRO SE, PLAINTIFF,
LAWRENCE MULCRONE, MAX FRITSCHEL AND DONALD SHIFLET, DEFENDANTS.
The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiff Arthur J. Larson brings this pro se action pursuant
to 42 U.S.C. § 1983 asserting the jurisdiction of the Court
under 28 U.S.C. § 1343(3). Alleging violations of his federal
constitutional rights, he seeks declaratory, injunctive, and
monetary relief from defendants Lawrence Mulcrone,
investigating agent for the Illinois Department of Law
Enforcement ("IDLE"); Max Fritschel, deputy director of the
IDLE; and Donald Shiflet, a retired correctional captain at the
Stateville Correctional Center. Before the Court is the motion
to dismiss the complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure of defendant Mulcrone, the
only defendant to be served.*fn1 For the reasons that follow,
the motion is granted.
Plaintiff currently is a prisoner at Stateville serving a
sentence of fifteen to twenty years on an armed robbery
conviction. The complaint in this action stems from a letter
which Fritschel sent to prison officials for placement in
plaintiff's institutional file. The purpose of the letter was
to inform prison and parole board officials that plaintiff had
made threats against an IDLE agent and his family just prior
to his sentencing. Plaintiff alleges that the information
contained in the letter is false and that Shiflet arbitrarily
used it to increase his security classification. Plaintiff
further alleges that Mulcrone was the source of the false
information. Plaintiff contested the accuracy of the
information through the prison grievance procedure without
Plaintiff's claim against Mulcrone is premised solely on the
allegation that Mulcrone was the source of the allegedly false
accusations disseminated by Fritschel. The parties agree that
after Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d
405 (1976), Mulcrone cannot be held liable under section 1983
for any injury to plaintiff's reputation. Plaintiff contends,
however, that under state law he had an entitlement interest in
his security classification that required the protection of the
due process clause. He further contends that defendants
violated his right to due process by increasing his security
classification without first affording him a hearing to contest
the information provided by Fritschel.
Not every injury in which a state official has played some
part is actionable under section 1983. Martinez v. California,
444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481 (1980).
To establish liability, plaintiff must allege and prove that
the official's conduct "caused" a deprivation of his federal
constitutional rights. Baker v. McCollan, 443 U.S. 137, 142, 99
S.Ct. 2689, 2693, 61 L.Ed.2d 433 (1979). Even with the liberal
construction accorded pro se pleadings under Haines v.
Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), the
complaint fails to causally connect Mulcrone to the alleged
infringement of plaintiff's due process rights.
Plaintiff's claim of constitutional injury is based on the
arbitrary manner by which Shiflet reclassified him. Mulcrone,
however, is not alleged to have had any authority over the
procedures for making classification decisions at Stateville.
The only connection alleged between Mulcrone and the
reclassification of plaintiff is Shiflet's reliance upon
information which purportedly originated with Mulcrone. Given
that Mulcrone did not personally communicate any information
to Shiflet, the link between Mulcrone's allegedly tortious
accusations and Shiflet's failure to provide plaintiff with a
hearing prior to increasing
his security classification is too attenuated to establish
liability against Mulcrone. See Margoles v. Tormey,
643 F.2d 1292, 1299 (7th Cir.), cert. denied, 452 U.S. 939, 101 S.Ct.
3082, 69 L.Ed.2d 954 (1981); Bonner v. Coughlin, 545 F.2d 565,
567 (7th Cir. 1976) (en banc).
Our inquiry is not concluded with the finding that the
complaint fails to state a claim for relief against Mulcrone.
In two recent cases, the Seventh Circuit cautioned against
premature dismissal of pro se actions in which a failure to
acquire service over defendants against whom the complaint may
state a potentially viable claim for relief is attributable to
the plaintiff's lack of legal training. Duncan v. Duckworth,
644 F.2d 653 (7th Cir. 1981); Maclin v. Paulson, 627 F.2d 83
(7th Cir. 1980). Plaintiff's due process claim against the
remaining defendants, Shiflet and Fritschel, turns upon his
contention that under state law he has a protectible "liberty"
interest in his prison security classification. This issue is
fully addressed in the briefs before the Court. Therefore,
before taking any measures to assist plaintiff in obtaining
service over Shiflet and Fritschel, the Court will determine
whether plaintiff's claim for relief against them is cognizable
under section 1983.
It is well settled that an inmate has no constitutional
right to a particular classification status. Moody v. Daggett,
429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 279 n. 9, 50 L.Ed.2d 236
(1976); Solomon v. Benson, 563 F.2d 339, 342 (7th Cir. 1977).
Thus, any liberty interest that plaintiff may have in his
prison security classification must be accorded to him by state
statute or official policy. See Durso v. Rowe, 579 F.2d 1365,
1369 (7th Cir. 1978), cert. denied, 439 U.S. 1121, 99 S.Ct.
1033, 59 L.Ed.2d 82 (1979). Plaintiff argues that Ill.Rev.Stat.
1979, ch. 38, § 1001-1-2(c) and Illinois Department of
Corrections Administrative Regulation 802 ("A.R. 802") create
the necessary entitlement to provide the predicate necessary to
trigger due process protections.
Ill.Rev.Stat. 1979, ch. 38, § 1001-1-2 sets out the general
purposes of the Illinois Code of Corrections. The specific
statutory subsection cited by plaintiff describes one of those
purposes as the prevention of "arbitrary or oppressive
treatment of persons adjudicated offenders and delinquents." A
general policy statement such as this, however, clearly does
not give rise to a protectible "liberty" interest of
entitlement. See Arsberry v. Sielaff, 586 F.2d 37, 48 (7th Cir.
1978). To create an entitlement, the state law or regulation
must confer upon the prisoner a reasonable expectation that he
will not be deprived of some tangible benefit in the absence of
certain specified events. See Meachum v. Fano, 427 U.S. 215,
226-27, 96 S.Ct. 2532, 2539-40, 49 L.Ed.2d 451 (1976).
Plaintiff further contends that A.R. 802 confers upon him an
entitlement interest in his prison security classification.
A.R. 802, which governs Institutional Assignment Committees,
essentially sets forth procedures for assigning and
reassigning inmates to work, training, and study programs. The
only provision of the regulation that directly relates to
security classifications is A.R. 802(II)(F) which provides:
The Assignment Committee shall also be
responsible for assigning, reviewing, and
changing the security classification of
residents, as necessary.
It is apparent from the "as necessary" clause of this
provision that the Assignment Committee has complete
discretion over security classification decisions. Since A.R.
802 does not create a justifiable expectation that an inmate
will receive or retain any particular security classification,
it does not give rise to a constitutionally protected
entitlement. See Arsberry, supra, 586 F.2d at 46.
Plaintiff argues finally that A.R. 802 creates an
entitlement because it delineates particular procedures that
must be followed in making and changing assignments. In
Chavis v. Rowe, 643 F.2d 1281 (7th Cir.), cert. denied,
454 U.S. 907, 102 S.Ct. 415, 70 L.Ed.2d 225 (1981), the Seventh
Circuit held that a regulation which establishes procedures for
the exercise of discretion, without setting limitations on the
range of discretion, does not create an
entitlement sufficient to invoke due process safeguards.
Id. at 1290. Thus, there is no merit to plaintiff's argument
that assignment procedures in themselves confer an interest of
entitlement in prison security classifications.
Because plaintiff's interest in his prison security
classification is not one which is subject to due process
protections, Shiflet's unilateral decision to use the
allegedly false information provided by Fritschel as a basis
for changing plaintiff's security classification is not
subject to challenge under section 1983. See Rosati v. Haran,
459 F. Supp. 1148, 1160-61 (E.D.N.Y. 1977). As the complaint
fails to state a claim of constitutional magnitude against
either Shiflet or Fritschel, the Court finds no need to assist
plaintiff in obtaining service over them.
In conclusion, the Court grants defendant Mulcrone's motion
to dismiss. Finding no legal merit to the claims against
defendants Fritschel and Shiflet, the Court, on its own
motion, dismisses the complaint against them pursuant to
28 U.S.C. § 1915(d). Accordingly, the action is dismissed in its
entirety. It is so ordered.