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WATTS v. MORGAN

August 30, 1983

CLEORIA LEROY WATTS, JR., PLAINTIFF,
v.
CAPTAIN KENNETH MORGAN, INDIVIDUALLY AND AS SHIFT COMMANDER, STATEVILLE CORRECTIONAL CENTER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William T. Hart, District Judge.

  MEMORANDUM OPINION AND ORDER

The plaintiff, Cleoria L. Watts, Jr. ("Watts") is an inmate at Stateville Correctional Center ("Stateville") in Joliet, Illinois and the defendants are various prison officials employed by the Illinois Department of Corrections ("IDOC") at Stateville.*fn1 Watts brings this action under 42 U.S.C. § 1983 claiming that his right to due process was denied because he was removed from a job assignment at Stateville without prior notice or a hearing, allegedly in violation of state statute and regulation. As a result, Watts asserts that he was unconstitutionally deprived of work for 23 days, lost the opportunity to earn meritorious good time during that period, eventually was permanently removed from one job assignment and was denied prescribed eye medication. Subject matter jurisdiction is asserted under 28 U.S.C. § 1331 and 1343.

Presently before the Court is defendants' motion to dismiss the amended complaint for failure to state a claim upon which relief may be granted, Fed.R.Civ.P. 12(b)(6), or for summary judgment, Fed.R.Civ.P. 56. The motions are made based on three general contentions: First, Watts has no liberty or property interest in retaining a prison job assignment. Second, even if he had such an interest, Watts cannot legally establish that his claim of improper removal was inadequately considered by the prison grievance committee. Finally, Watts fails to assert any denial of medical care compensable under section 1983 because the only defendant charged with the alleged mistreatment, the Assistant Warden of Programs, is not alleged to have committed any direct acts.

For the reasons that follow, the motion to dismiss for failure to state any claim is granted.

FACTS

Beginning in August 1981, Watts was assigned as a stretcher runner at Stateville's Screening Clinic ("Clinic"). The Clinic is a medical dispensary. He remained in that position until January 4, 1982 when his assignment was temporarily cancelled due to a rumor that he was fraternizing with a female, noninmate employee of the Clinic. Watts was placed on "unassigned status pending investigation." He claims that he neither received any explanation at the time of his removal nor was he afforded a hearing to contest the removal. Watts, however, says that on January 11, 1982 he filed a grievance protesting the removal with Stateville's Institutional Inquiry Grievance Board and received no response until three months later.

In the interim, the defendants found no legitimate basis to support the rumors of Watts' alleged fraternization. On January 27, 1982, 23 days after he was removed, Watts was reassigned to the Clinic. On April 19, 1982, he was once again removed from the Clinic — permanently. The stated reason was a new rule which requires the inmate staff of the Clinic to be rotated every six months.*fn2 Watts was transferred to the butcher shop. He argues that the new rule is not the reason for his permanent transfer from the Clinic. Rather, he says that his permanent transfer was prompted by the same, untrue allegations of fraternization which led to his temporary removal pending investigation.

Watts also claims that he suffers from an unidentified eye disease which requires medical treatment twice daily. He says that during the 23 day period in which he remained idle, he did not receive or received irregularly his treatment at the Clinic. Watts claims that as a result he suffered much pain.

Watts asserts a property interest in prison employment which cannot be disturbed absent due process. He also argues, in effect, that his alleged deprivation of good time impaired his liberty interest in a speedy release from incarceration.

DISCUSSION

A. Liberty or Property Interest

The Fourteenth Amendment prohibits a state from depriving all persons, including incarcerees, of life, liberty or property without due process. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 336 (1974). But, every interference by the state which results in some discomfort or deprivation is not actionable. Only where a claimant can satisfy both parts of a two part test may he recover for an unconstitutional deprivation. Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1982).

First, the Court must establish whether a protected interest exists. If it does, then the Court looks to see if the interest was disturbed without due process. The key inquiry is whether an individual has a right or a legitimate expectation in a tangible benefit, based on the Constitution, state law or practice the revocation of which is conditioned upon the occurrence of specified events. Vitek v. Jones, 445 U.S. 480, 490, 100 S.Ct. 1254, 1262, 63 L.Ed.2d 552 (1980); 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). Property interests generally are not created by the Constitution. Their primary source is state law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Liberty interests may stem from the Constitution or state law.

If either a liberty or property interest is identified, the minimum required procedural protections are defined by federal constitutional law, not state law. Shango v. Jurich, supra at 1098. Not every change in the conditions of confinement having a substantial adverse impact on a prisoner invokes due process protection. Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976).

There is no constitutional right to work in prison. Garza v. Miller, 688 F.2d 480, 485 (7th Cir. 1982), cert. denied, ___ U.S. ___, 103 S.Ct. 796, 74 L.Ed.2d 1000 (1983); Alitzer v. Paderick, 569 F.2d 812-13 (4th Cir.), cert. denied, 435 U.S. 1009, 98 S.Ct. 1882, 56 L.Ed.2d 391 (1978). Moreover, the expectation of keeping a particular job is not a property or liberty interest entitled to due process protection. Gibson v. McEvers, 631 F.2d 95 (7th Cir. 1980); Bryan v. Werner, 516 F.2d 233 (3d Cir. 1975). Instead, assignments of work to prisoners is a matter of prison administration, within the discretion of prison administrators. Alitzer v. Paderick, supra. See also Zemblidge v. Lane, No. 82 C 0200, at p. 4, (N.D.Ill. June 24, 1983). Thus, where discharge from a job does not result in an increased period of confinement, no constitutional interest is impaired. Wolff v. McDonnell, supra.

Accordingly, any actionable right Watts may have in a prison job must be found, if at all, in state statute or policy. Watts concedes that he has no right to a particular job. However, he cites Ill.Rev.Stat. 1979, ch. 38, §§ 1001-1-2(c), 1003-2-2(d), 1003-8-3 and 1003-12-1, along with IDOC administrative regulation ("A.R.") 802 as the sources of his right to a job.

Ill.Rev.Stat. ch. 38, § 1001-1-2 states that one of its purposes is the prevention of "arbitrary or oppressive treatment of persons adjudicated offenders and delinquents." In section 1003-2-2, a duty to "develop and maintain programs of control, rehabilitation and employment of committed persons" is imposed on the IDOC. Such general policies "do not give rise to a protectible `liberty interest' of entitlement." Larson v. Mulcrone, 575 F. Supp. 1 at 3 (N.D.Ill. 1982). Likewise, sections 1003-8-3 and 1003-12-1 do not create an entitlement sufficient to invoke due process safeguards. Those sections respectively state that "work, education and other ...


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