United States District Court, Northern District of Illinois, E.D
July 18, 1983
EDDIE GREER, PLAINTIFF,
RICHARD DEROBERTIS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Eddie Greer ("Greer"), a former prisoner at Stateville Correctional
Center ("Stateville"), brings this civil rights action against twelve
Stateville officials*fn1 under 42 U.S.C. § 1983 ("Section 1983"),
the Illinois Constitution and the laws of Illinois. Greer's Amended
Complaint (the "Complaint") has three counts:
1. Count I charges eight of the defendants
violated Greer's Eighth Amendment,*fn2 equal
protection and due process rights as well as his
corresponding rights under the Illinois Constitution
(Art. I, §§ 2 and 11) by punishing Greer for
"misusing" state property when he refused to undergo
surgery after having been taken to the hospital for
2. Count II asserts seven of the defendants (three
of whom were named in Count I as well) violated
those same rights (except for equal protection) by
causing Greer to be placed in segregation (and
punished in other respects as well) on the basis of
charges known to be false. It also asserts flaws in
the disciplinary proceedings.
3. Count III charges Conley, who initiated the
disciplinary proceeding at issue in Count II, with
malicious prosecution under Illinois law.
Defendants now move to dismiss various aspects of those counts. For the
reasons stated in this memorandum opinion and order defendants' motion is
granted in part and denied in part.
In June 1981 Hoffman performed surgery to alleviate Greer's hernia
condition. In April 1982 another Stateville physician examined Greer,
determined the operation had been unsuccessful and advised Greer to
undergo a second operation. Greer then "expressed his desire that the
corrective surgery be performed by someone other than defendant Hoffman."
Complaint ¶ 13.
Despite Greer's request Hoffman was assigned to perform the operation.
Two Stateville guards transported Greer to the hospital the evening
before the scheduled surgery. Throughout the night Greer repeatedly told
both the guard on duty in his room and hospital personnel (1) he did not
want Hoffman to operate on him and (2) he wanted to speak to Hoffman.
Complaint ¶ 17. Next morning Greer again expressed his refusal to
have Hoffman conduct the operation. Later that morning the guard on duty
informed Greer he could return to Stateville without undergoing the
scheduled operation. Greer accepted that alternative.
Upon his return to Stateville that same day, Greer received an Inmate
Disciplinary Report ("Disciplinary Report") charging his refusal to
undergo the operation established a misuse of state property. That
Disciplinary Report was issued by Elliott at the direction of Hoffman and
was reviewed by Morgan. Complaint ¶ 21. As Greer learned from
Elliott several months later, the Disciplinary Report "had been issued
because other inmates had also refused treatment by prison physicians
prior to plaintiff's refusal to be operated on by defendant Hoffman. . .
. [T]hese other inmates had not been disciplined for refusing treatment."
Complaint ¶ 28.
On April 29, 1982 the Adjustment Committee conducted a hearing on the
charge. At the hearing Hall apprised Greer of his obligation to pay the
state $500 to cover the expenses relating to his overnight stay at the
hospital. Hall then told Greer if he signed a promissory note for the
$500 he would not be assigned to segregation. After Greer refused to do
so the Adjustment Committee found him guilty of the violation. As
punishment the Adjustment Committee, with DeRobertis' knowledge and
approval, revoked 30 days of his statutory good time credits, demoted him
to C grade from A grade for 90 days and ordered him confined to
segregation for 60 days. Complaint ¶ 23.
On May 4, 1982 Greer attempted to secure administrative review of the
Adjustment Committee determination by sending a grievance letter to
Allen. Greer never received a response. Complaint ¶ 25. Later in May
Greer was released from segregation because of good behavior. All other
sanctions imposed by the Adjustment Committee were apparently fully
Based on all those allegations, Count I seeks damages against
DeRobertis, Hall, Morgan, Hoffman, Elliott, Allen and the two unknown
members of the Adjustment Committee.
Motion To Dismiss
Defendants attack Count I on several grounds:
1. It fails to allege the requisite personal
involvement of Elliott, Hoffman and Morgan in the
claimed Eighth Amendment violation — the
imposition of disproportionate punishment.*fn4
2. Its due process component is not cognizable as
to any defendant because (a) the April 29, 1982
proceedings were based on the appropriate quantum of
evidence and (b) conditioning sanctions upon Greer's
refusal to pay $500 was a permissible effort to
enable Greer to rectify his violation of prison
3. Its asserted failure to allege purposeful
discrimination against Greer is fatal to his equal
protection claim as to all defendants.
4. It fails to state a claim against Allen because
Greer has no constitutional right to a grievance
Each argument will be considered in turn.
Defendants' Eighth Amendment argument has merit. As both sides
recognize, Section 1983 liability can be assessed against officials only
if they were personally involved in the constitutional deprivation, in
this case the imposition of disproportionate punishment. See Duncan v.
Duckworth, 644 F.2d 653, 655 (7th Cir. 1981). Here the Complaint alleges
no such personal responsibility on the part of Elliott, Hoffman and
Morgan. While they allegedly initiated the disciplinary proceedings (by
issuing or causing issuance of the Disciplinary Report), they played no
role in determining Greer's guilt or the appropriate punishment. Nor is
there any allegation they conspired with the three members of the
Adjustment Committee panel who were personally responsible for the
claimed constitutional infringement. Consequently Count I's Eighth
Amendment claim must be dismissed as to Elliott, Hoffman and Morgan.*fn6
Count I's due process claim, however, withstands defendants' motion to
dismiss. Its syllogistic legal foundation is certainly sufficient:
1. As defendants' R.Mem. 9 acknowledges, Greer has
a constitutional right to refuse medical treatment.
See Lojuk v. Quandt, 706 F.2d 1456, 1465-66 (7th
2. Greer may not be penalized for exercising such
a constitutional right. See Shango v. Jurich,
681 F.2d 1091, 1103 (7th Cir. 1982).
As for the adequacy of the supporting factual allegations, the critical
issue is whether defendants placed an impermissible burden on Greer's due
process rights by punishing him for "misuse of state property" upon his
refusal to pay $500. True enough, requiring Greer (either directly or
indirectly by threats of punishment) to bear actual expenses resulting
from his refusal to accept medical treatment would not unduly interfere
with his due process rights.*fn7
But that factual scenario is not
compelled by the Complaint. Indeed there is no difficulty in positing
other possible circumstances (reasonably inferable from the Complaint)
under which the Adjustment Committee's imposition of conditional
punishment impinged on those constitutional rights:
1. For example, the actual cost to the state of
Greer's brief excursion to the hospital may well
have been less than $500.
2. Complaint ¶ 13 suggests Greer adequately
apprised Stateville authorities of his decision to
forego medical treatment from Hoffman before he was
taken to the hospital. In that event, the costs of
Greer's overnight stay would have been attributable
to the actions of others — not to his refusal
to undergo surgery.
Accordingly Count I's due process claim clears the pleading threshold.
Defendants' challenge to Count I's equal protection claim deserves
At the very least Complaint ¶¶ 28 and 30 create a reasonable
inference as to defendants' discriminatory animus:
1. Complaint ¶ 28 alleges Stateville
authorities had never disciplined other inmates who
had refused medical treatment by prison physicians
before the events at issue here.
2. Complaint ¶ 30 asserts all "aforesaid acts
and omission of defendants, acting in their official
capacities, were performed intentionally and with
reckless disregard for and with deliberate
indifference to plaintiff's constitutional rights."
In tandem those allegations suggest Greer was not unintentionally subject
to "a mere inconsistency in prison management" or "an erroneous decision"
(Durso v. Rowe, 579 F.2d 1365, 1372 (7th Cir. 1978), cert. denied,
439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979)) but instead was
deliberately singled out and punished for conduct others had committed
Defendants' final assault against Count I — its failure to state
a claim against Allen — fares better. Count I alleges Allen, as a
member of the Inquiry Board, participated personally in unconstitutional
deprivations occasioned by the April 29 disciplinary proceedings by
failing to respond to Greer's grievance letter. While those allegations
disclose Allen's knowledge of and power to remedy the claimed
constitutional violations, they fail to establish Allen's obligation
(under federal law as opposed to state legislative or administrative law)
to exercise that power. And that critical aspect of Section 1983's
requirement of direct personal responsibility cannot be satisfied as a
matter of law (absent any allegation of conspiracy with those Stateville
officials who presided at the April 29 disciplinary hearing). As Greer
concedes, the Fourteenth Amendment does not mandate administrative review
of prison disciplinary actions.*fn8 See Azeez v. DeRobertis,
568 F. Supp. 8, 10 (N.D.Ill. 1982); United States ex rel. Wolfish v.
Levi, 439 F. Supp. 114, 163-64 (S.D.N.Y. 1977), aff'd in relevant part
sub nom. Wolfish v. Levi, 573 F.2d 118 (2d Cir. 1978), rev'd on other
grounds sub nom. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d
447 (1979). That well-settled proposition necessarily undercuts Greer's
bald assertion that Allen was obligated to respond to his grievance, for
that is just another way of saying Greer was entitled to invoke
Stateville's grievance machinery.
Counts II and III
Counts II and III are based on a common factual account. On July 15,
1982 Greer received a Disciplinary Report "issued by defendant Conley and
reviewed by defendant Morgan." Complaint ¶ 48. That Disciplinary
Report falsely accused Greer of attempting to bribe and blackmail Conley
to bring narcotics into Stateville. Conley "knew the charge was false
when he issued this Disciplinary Report." Id. When informed by Greer of
the Disciplinary Report, Godinez said he would insure "the charge was
dropped and that [Greer] was not punished." Complaint ¶ 49.
On July 23, 1982 the Adjustment Committee conducted a hearing on the
charge. At that hearing Greer asserted his innocence, asked that certain
witnesses be called in his behalf and volunteered to take a polygraph
examination. Both requests were refused by the Adjustment Committee,
which found Greer guilty, sentencing him to 180 days in disciplinary
segregation and revoking 180 days of his good time credits.
On October 28, 1982 Greer took a polygraph examination, the results of
which exonerated him from the charge in the July 15 Disciplinary Report.
Complaint ¶ 53. Consequently the prison authorities released Green
from disciplinary segregation, compensated him for income lost while in
segregation and expunged the Disciplinary Report from his master file.
Count II is brought against DeRobertis, Hall, Conley, Morgan, Godinez
and the two members of the Adjustment Committee. Count III names only
Motion To Dismiss
Morgan seeks dismissal from Count II on the ground his personal
involvement in the claimed constitutional deprivations was not adequately
alleged. Morgan is right. Count II says only that he "reviewed" the
allegedly false Disciplinary Report. At most that allegation establishes
Morgan's role in initiating — not conducting — the
disciplinary proceeding against Greer. But for the reasons already
noted, that allegation is an insufficient predicate for holding Morgan
accountable for any imposition of disproportionate punishment by the
Adjustment Committee. Morgan's lack of involvement in the disciplinary
proceedings similarly exculpates him from any liability for due process
violations (e.g., refusal to call Morgan's witnesses) that occurred in
the course of those proceedings. Even had the Complaint alleged Morgan's
knowledge of the falsity of the Disciplinary Report (and it plainly did
not*fn9,) Morgan still could not — as a matter of law — be
found liable for those claimed constitutional infringements*fn10 unless
he had conspired with those who bore direct responsibility for the
violations — the Adjustment Committee members. And not even Greer
suggests the Complaint hints at such a conspiracy. Accordingly Morgan
must be dismissed from Count II.*fn11
As for Count III — the pendent claim of malicious prosecution
— Conley (the only defendant against whom that count is directed)
advances two grounds for dismissal:
1. Prison disciplinary hearings are not civil or
criminal judicial proceedings on which malicious
prosecution claims can be based.
2. Count III fails to allege termination of the
July 23 disciplinary proceeding in Greer's favor
— another component of a malicious prosecution
Because Conley's first argument is persuasive, this Court will not reach
As Ritchey v. Maksin, 71 Ill.2d 470, 475, 17 Ill.Dec. 662, 664,
376 N.E.2d 991, 993 (1978) teaches, one element of a malicious
prosecution cause of action is "the commencement or continuance of an
original criminal or civil judicial proceeding." That requirement cannot
be relaxed to embrace prison disciplinary proceedings. Though no Illinois
case has addressed that issue, the Illinois courts unanimously agree the
elements of a malicious prosecution claim must be strictly construed.
See, e.g., Franklin v. Grossinger Motor Sales, Inc., 122 Ill. App.2d 391,
396-97, 259 N.E.2d 307, 309 (1st Dist. 1970). That admonition forecloses
this Court from extending the malicious prosecution tort to the
circumstances alleged here.*fn12
Defendants' motion to dismiss is granted only to the following extent:
1. Greer's Eighth Amendment claim in Count I is
dismissed as to Elliott, Hoffman and Morgan.
2. All claims in Count I are dismissed as to
3. Count II is dismissed as to Morgan.
4. Count III is dismissed.
In all other respects, defendants' motion is denied. All defendants still
in the case are ordered to answer the Complaint on or before July 29,