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CERDA v. O'LEARY

September 25, 1990

MAXIMO CERDA, Plaintiff,
v.
MICHAEL O'LEARY, Warden of the Stateville Correctional Center; MELVIN ALLEN, Chairman of the Stateville Institutional Inquiry Board; D. SCOTT, Chairman of the Stateville Adjustment Committee; MARIE JORDAN, Member of the Stateville Adjustment Committee; F. MUSSATTO, Member of the Stateville Adjustment Committee; J. SANDERS, Investigator for the Stateville Correctional Center; H. GIVENS, Investigator for the Illinois Department of Corrections; UNKOWN CORRECTIONAL OFFICER, Employee of the Stateville Correctional Center, Defendants


James F. Holderman, United States District Judge.


The opinion of the court was delivered by: HOLDERMAN

JAMES F. HOLDERMAN, UNITED STATES DISTRICT JUDGE

 Plaintiff Maximo Cerda, an inmate at Stateville Correctional Center ("Stateville"), brought this action against Stateville employees Michael O'Leary, Melvin Allen, D. Scott, Marie Jordan, F. Mussatto, J. Sanders, H. Givens, and an unknown correctional officer claiming defendants violated his constitutional rights in the course of prison disciplinary proceedings. Defendants have moved to dismiss all counts of plaintiff's complaint under Federal Rule of Civil Procedure 12(b) (6) for failure to state a claim upon which relief may be granted. For the reasons stated below, defendants' motion to dismiss Counts I, II, VI, VII, and VIII of plaintiff's complaint is granted, and defendants' motion to dismiss Counts III, IV, and V is denied.

 On a motion to dismiss, the allegations of the complaint as well as the reasonable inferences to be drawn from them are taken as true. Doe v. St. Joseph's Hosp., 788 F.2d 411 (7th Cir. 1986). The plaintiff need not set out in detail the facts upon which a claim is based, but must allege sufficient facts to outline the cause of action. Id.

 Moreover, since plaintiff is pleading pro se, his complaint is to be liberally construed. Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1207 (7th Cir. 1980). A complaint can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id.

 FACTS

 The facts as alleged in the complaint are as follows. On January 21, 1988, at approximately 9:30 a.m., Richard Gonzales, an inmate at Stateville, was fatally stabbed. On February 19, 1988, an unknown correctional officer removed plaintiff from the general inmate population and placed him in disciplinary segregation for seven days without informing plaintiff of the reason for the action. (Complaint, paras. 18-19.) On or about March 25, 1988, plaintiff once again was placed in disciplinary segregation where he received a written disciplinary report charging him with violating Department of Corrections Rule 504, Section 501. *fn1" (Complaint para. 20.)

 On March 31, 1988, plaintiff appeared before the Adjustment Committee ("Committee"), which is the disciplinary body at Stateville. Plaintiff requested that the Committee interview two correctional officers to verify that plaintiff was in the inmates' law library at the time of the homicide. (Complaint para. 21.) The Committee interviewed these officers, an investigator who had spoken with three confidential witnesses, and several other Stateville employees. Plaintiff was not present for any of these interviews. Thereafter, the Committee found plaintiff guilty of violating Rule 504, Section 501 based upon a summary of evidence, a copy of which plaintiff has attached to his complaint. (Complaint, Exhibit B.) As a result, plaintiff lost 360 days of good time credits, was demoted to "C" grade (causing a loss of various privileges) for 360 days, and received 360 days of disciplinary segregation. (Complaint para. 30.)

 On or about June 8, 1988, plaintiff filed a grievance with the Institutional Inquiry Board ("Board"), arguing that the statements of the three confidential witnesses relied upon by the Committee were "erroneous, fabricated and/or false." (Complaint, para. 33.) Plaintiff submitted "newly discovered evidence" which consisted of an affidavit from a correctional officer and four inmates. Id. Each of the five affiants stated under oath that he observed plaintiff in the law library at all times from 8:30 a.m. to 10:30 a.m. on the day of the homicide. The Board recommended that plaintiff's grievance be denied. On July 21, 1988, defendant O'Leary, Warden of Stateville, approved the Board's finding and upheld the Committee's decision. (Complaint, para. 36.)

 Count I of the complaint alleges that defendants violated 42 U.S.C. Section 1981 by depriving plaintiff of his right to due process. Counts II through V allege that some or all of the defendants violated 42 U.S.C. Section 1983 by depriving plaintiff of his right to due process. Count VI and VII contend that defendants violated 42 U.S.C. Sections 1985(3) and 1986, respectively, by conspiring to deprive plaintiff of his right to due process, and by failing to prevent the commission of wrongs that were the object of the conspiracy. Finally, Count VIII alleges that Rule 504, Section 501 is unconstitutional as applied to plaintiff.

 COUNTS I, VI, AND VII: CLASS-BASED DISCRIMINATION

 In Count I, the plaintiff alleges that the defendants intentionally deprived the plaintiff of his Fifth and Fourteenth Amendment rights, thereby violating 42 U.S.C. Section 1981. Section 1981 protects against discrimination on the basis of race or alienage. Bell v. City of Milwaukee, 746 F.2d 1205, 1232 (7th Cir. 1984). In order to establish a claim for racial discrimination under Section 1981, a plaintiff must show that he was the victim of intentional discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207 (1981); McCalpine v. Foertsch, 870 F.2d 409, 414 (7th Cir. 1989).

 Mr. Cerda, a citizen of the United States, is of Hispanic origin. (Complaint, para. 16.) He does not allege in his complaint that the actions taken against him by defendants were motivated by racial discrimination. In fact, plaintiff does not even maintain that racial discrimination played any role in this case. Therefore, plaintiff has failed to adequately allege a violation of Section 1981. Count I must be dismissed.

 In Count VI, plaintiff claims that defendants violated 42 U.S.C. Section 1985(3) by intentionally conspiring to deprive plaintiff of his Fifth and Fourteenth Amendment rights. (Complaint para. 57.) A violation of Section 1985(3) requires "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971); Bell, 746 ...


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