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CAUDLE-EL v. PETERS

October 15, 1989

STEVEN CAUDLE-EL, Plaintiff,
v.
HOWARD PETERS III, MAJOR McCOLLUM, HARVEY TRAVER, WARREN ENSOR, DANIEL BARKHART, CHARLES AKINS and RALPH JOHNSON, Defendants


Marvin E. Aspen, United States District Judge.


The opinion of the court was delivered by: ASPEN

MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 The plaintiff, a former prisoner of the Illinois Department of Corrections, has brought this action pro se, under 42 U.S.C. § 1983, to redress alleged deprivations of his Fourteenth Amendment rights. The defendants, officers of the Illinois Department of Corrections, have moved under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief can be granted. The defendants claim further that they are entitled to qualified immunity. For the reasons set forth below, the defendants' motion to dismiss is granted in part and denied in part. The defendants' claim of qualified immunity as to the remaining claims is rejected.

 Caudle-El filed his complaint pro se, and like many such complaints filed by prisoners in this district, his complaint is not a model of clarity. Nevertheless, the allegations of a prisoner's pro se complaint, though inartfully plead, are not held to the stringent standards applied to pleadings drafted by lawyers. Accordingly we will construe Caudle-El's pro se complaint liberally and not dismiss it for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hughes v. Rowe, 449 U.S. 5, 7-10, 101 S. Ct. 173, 176, 66 L. Ed. 2d 163 (1980) (per curiam); cf. Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986) (allegations of pro se complaint construed liberally to establish basis for jurisdiction).

 Caudle-El has named as defendants the warden and six correctional officers at the Sheridan Correctional Center. Caudle-El has alleged the following facts which we will consider as true for the purposes of deciding the motion to dismiss. *fn1" At all times relevant to his complaint, Caudle-El was incarcerated at the Sheridan Correctional Center. On November 27, 1987, Major Richard McCollum sent Lt. David Burkhart and Capt. Warren Ensor to move Caudle-El to another location without any valid reason. Caudle-El was "slow to respond" because he wanted to know the reason why he was being moved. At that point, Capt. Harvey Tarver arrived and did something to "provoke" Caudle-El into a scuffle with the three officers. Caudle-El was then handcuffed and secured. (Plf.Resp. at para. 4). Burkhart then attacked Caudle-El and choked him without justification. (Plf.Resp. at para. 4). Also while Caudle-El was in handcuffs and secured, Ensor maliciously attacked Caudle-El, threw him to the ground and "dropped his knee into" Caudle-El's back. Ensor then told Caudle-El he would have him killed. As a result of these actions, Caudle-El received immediate medical attention from an outside physician. (Plf.Resp. at para. 2).

 Following this incident, Caudle-El was brought before the prison's Adjustment Committee. Lt. Ralph Johnson, the chairman of the committee, denied Caudle-El's request for a prison advocate or counselor. (Plf.Resp. at para. 5). After the hearing, Caudle-El was placed in segregation. There he was denied all hygiene material for six days. Sometime later, Lt. Charles Akins testified before a grand jury concerning the incident. Caudle-El was then tried in the circuit court for unspecified charges. The warden Howard Peters III approved all of the foregoing actions and events.

 On these facts, Caudle-El alleges several constitutional violations giving rise to liability under 42 U.S.C. § 1983. We will address each in turn.

 First, Caudle-El claims that Johnson, the chairman of the Adjustment Committee, violated his due process rights by denying him the assistance of a prison advocate or counselor when he appeared before the committee. As a general rule, however, there is no constitutional right to an advocate in a prison disciplinary proceeding. Wolff v. McDonnell, 418 U.S. 539, 569-70, 94 S. Ct. 2963, 2981-82, 41 L. Ed. 2d 935 (1974). Further, Caudle-El's complaint does not show that he falls within that class of persons for whom there may be an exception to the general rule because of their inability to comprehend and respond to the administrative action brought against them. See id. at 570, 94 S. Ct. at 2982. *fn2" Therefore, Caudle-El has failed to state a viable claim against Johnson.

 Caudle-El next claims that he was unconstitutionally placed in double jeopardy when he was brought before both the prison Adjustment Committee and the circuit court for the same acts. Caudle-El further asserts that Akin was a party to this alleged infringement by testifying before a grand jury about what Caudle-El claims was a purely institutional matter. These allegations fail to state a claim, however, since it is well established that administrative punishment imposed by prison officials does not render a subsequent criminal prosecution violative of the Fifth Amendment prohibition of double jeopardy. United States v. Shapiro, 383 F.2d 680, 683 (7th Cir. 1967); United States v. Rising, 867 F.2d 1255 (10th Cir. 1989). Cf. United States v. Hanahan, 798 F.2d 187 (7th Cir. 1986) (administrative proceeding and criminal proceeding serve different ends).

 Caudle-El next alleges that McCollum violated his due process rights when McCollum ordered his relocation, without providing a reason and purely to harass Caudle-El. We will first consider McCollum's failure to give Caudle-El a reason for the transfer. Caudle-El does not specify where McCollum had decided to move him. However, even if we construe Caudle-El's complaint liberally to state that he was transferred from one prison to another less desirable prison, due process does not require that McCollum tell Caudle-El why he was being transferred. See Meachum v. Fano, 427 U.S. 215, 224, 96 S. Ct. 2532, 2538, 49 L. Ed. 2d 451 (1976). Prison officials are accorded "wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish, 441 U.S. 520, 547, 99 S. Ct. 1861, 1878, 60 L. Ed. 2d 447 (1979). Such policies and practices include the decision to reassign a prisoner within a particular prison or to transfer him to another prison. See, e.g., Harris v. McDonald, 737 F.2d 662 (7th Cir. 1984) (intrastate transfer from medium to maximum security institution).

 The decision to reassign or transfer a prisoner from one location to another having a substantial adverse impact on the prisoner does not rise to the level of a due process violation absent a liberty interest grounded in state law. Meachum, 427 U.S. at 224, 96 S. Ct. at 2538. The Illinois administrative regulation governing reassignment and transfer of prisoners does not provide such a liberty interest. 20 Ill.Admin.Code § 503.120 (governing administrative transfers). That regulation places no relevant limits on McCollum's discretion to reassign inmates within the institution. See Mathews v. Fairman, 779 F.2d 409, 414-15 (7th Cir. 1985). Accordingly, Caudle-El has failed to state a claim against McCollum based on McCollum's failure to provide a reason for the transfer.

 Caudle-El also bases his claim against McCollum on the allegation that McCollum relocated him for the improper purpose of harassing him. The inference to be drawn from this claim is that McCollum's decision to relocate him was based on a discriminatory or retaliatory animus. The protections of due process prohibits retaliatory action when that action is meant to punish an inmate for exercising his constitutional rights. See, e.g., Ustrak v. Fairman, 781 F.2d 573 (7th Cir. 1986) (transfer following inmate's letters complaining of racial discrimination); Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1982). In order to state a claim for retaliatory transfer, however, a prisoner must allege a chronology of events from which retaliation may be inferred. Murphy v. Lane, 833 F.2d 106, 108-09 (7th Cir. 1987). Alleging the mere fact of retaliation is insufficient. Benson v. Cady, 761 F.2d 335, 342 (7th Cir. 1985). Caudle-El has provided no facts in his complaint from which retaliation might be inferred. Indeed, his allegation of harassment is nothing more than an allegation of the mere fact of retaliation. Therefore, Caudle-El has failed to state a claim against McCollum on this ground as well.

 Caudle-El next raises a claim that Traver, Burkhart and Ensor violated his constitutional right to be free from cruel and unusual punishment. Traver allegedly violated this right by "provoking" Caudle-El into a "scuffle" with the three officers. Burkhart put a chokehold on Caudle-El while he was handcuffed. And Ensor threw Caudle-El to the ground and "dropped a knee into" his back while he was handcuffed. Further, Ensor made death threats against Caudle-El during this incident. Caudle-El described all three officers as participants in an "attack" against him.

 Regarding the provocation and threat, Traver and Ensor argue that "mere words or threats, however violent, do not amount to an actionable assault under § 1983." Simms v. Reiner, 419 F. Supp. 468, 474 (N.D.Ill. 1976). Traver and Ensor's argument is valid, however, only to the extent such words or threats do not result in or accompany physical harm. Here, the allegations are that the provocation led to a scuffle which resulted in a further attack on Caudle-El. Ensor's threat arose during the course of that attack. Therefore, we will consider the facts of verbal provocation and threats ...


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