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LASLEY v. GODINEZ

September 24, 1993

WILLIE LASLEY, STEPHEN CARTER, ALEX WEST, BRUCE DAVIS, TERRY STARKS, MILLARD ALEXANDER, PARSON LAVANCE, HERBERT BARNES, RICKEY McGEE, TIMOTHY FORD, JAMES THOMAS, MARKUS DURDEN BEY, JEFFERY MAHALICK, CHARLES SPEARS, MICHAEL WELLS, EDDIE BROWN, Individually and on behalf of all others similiarly situated, Plaintiffs
v.
SALVADOR GODINEZ, Warden of Stateville Correctional Center, JAMES SCHOMIG, Ass't Warden of Stateville Correctional Center, MARK NELSON, Superintendent at Stateville Correctional Center, ULESSES PRICE, Captain at Stateville Correctional Center, JOHN THOMAS, Lieutenant at Stateville Correctional Center, WILLIAM PULLEY, c/o at Stateville Correctional Center, PAUL RAINWATER, c/o at Stateville Correctional Center, OFFICE HICKS, c/o at Stateville Correctional Center, OFFICER SHEGA, c/o at Stateville Correctional Center, LOCKSMITH DREW, Locksmith at Stateville Correctional Center, JOHN DOE #1, JOHN DOE #2, JOHN DOE #3, JOHN DOE #4, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiffs, inmates at Stateville Correctional Center, bring this pro se action pursuant to 42 U.S.C. § 1983 against ten correctional officials at Stateville. Plaintiffs allege that their due process rights have been violated because they have been found guilty at Adjustment Committee hearings without any evidence to support the finding, that defendants have failed to follow procedures of the Illinois Department of Corrections ("IDOC"), and that Warden Godinez, Assistant Warden Schomig, and Superintendent Nelson have failed to supervise their subordinates to ensure that IDOC regulations were followed.

 Defendants have filed motions to dismiss for each individual plaintiff, including Lasley who was terminated from this action on October 8, 1992, for failure to pay the partial filing fee. Although the dates vary from plaintiff to plaintiff, their claims entail virtually the same facts. *fn1"

 I. Standard of Review

 Under Rule 12(b)(6) Fed.R.Civ.P., a claim may be dismissed if as matter of law "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Neitzke v. Williams, 490 U.S. 319, 327, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984)).

 II. Facts

 Nine of the plaintiffs, Carter, West, Davis, Starks, Alexander, Lavance, Barnes, Durden Bey, and Mahalick, allege that on September 20, 1991, Correctional Officer Hicks and locksmith Drew removed the panels above their respective cell doors. Various kinds of contraband, mainly home-made knives, were found. Each of these plaintiffs was charged with violation of Department Rule 104--Dangerous Contraband. The Adjustment Committee held disciplinary hearings on September 26, 1993. Although each of the plaintiffs claimed they had no knowledge of the contraband and averred that their cells had not been shook down before they were assigned to them, the Committee found them guilty. The plaintiffs, except for Durden Bey and Mahalick, *fn2" then filed grievances with the Institutional Inquiry Board on November 23, 1991, which concurred with the Adjustment Committee's findings on December 24, 1991. Plaintiffs then filed grievances with the Administrative Review Board on January 13, 1992, but had not received hearings at the time this complaint was filed.

 The remaining plaintiffs, McGee, Ford, Thomas, Spears, Wells, and Brown, claim that the various cells to which they were assigned were not shook down before they were moved into them. Shortly after being assigned to the cells, contraband was uncovered during routine shakedowns. Each was written a disciplinary ticket and found guilty by the Adjustment Committee. Only Wells grieved the committee's findings.

 III. Analysis

 In Wolff v. McDonnell, 418 U.S. 539, 563-67, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), the Supreme Court set forth the due process requirements that inmates must receive at disciplinary hearings: (1) advance written notice of the charges, no less than 24 hours before appearing before the Adjustment Committee; (2) an opportunity to call witnesses and present documentary evidence in their defense when consistent with institutional safety and correctional goals; and (3) a written statement by the fact finders as to the evidence relied on and the reasons for disciplinary action.

 Plaintiffs challenge the third of these requirements, that is, the evidence on which the Adjustment Committee relied in imposing discipline on them. In finding plaintiffs guilty, the Adjustment Committee relied on Department Rule 504.20(e) which states in part:

 
Every committed person is presumed to be responsible for any contraband or other property prohibited by this Part which is located on his person, within his cell or within areas of his housing, work, educational or vocational assignment which are under his control. Areas under a committed person's control include, but are not limited to, the door track, the window ledge, ventilation unit, plumbing, and the committed person's desk, cabinet, shelving, storage area, bed and bedding materials in his housing assignment; . . .

 Plaintiffs do not deny that contraband was found when their cells were searched, but, maintaining their innocence, they contend that defendants violated IDOC Administrative Directive 05.01.111(II)(D)(1) which provides: "Prior to occupancy by a new inmate, an unoccupied living area shall be searched." If correctional officials had followed their own rules and searched the cells before plaintiffs were assigned to them, plaintiffs contend that they would have found the contraband then. This failure of defendants to abide by their own rules resulted in plaintiffs being found ...


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