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ROBINSON v. ILLINOIS STATE CORRECTIONAL CTR. WARDE

March 28, 1995

WILLIE ROBINSON, Plaintiff,
v.
ILLINOIS STATE CORRECTIONAL CENTER (STATEVILLE) WARDEN; SALVADOR A. GODINEZ, SUPERINTENDENT; ANTHONY RAMOS, Defendants.



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

 MARVIN E. ASPEN, District Judge:

 Plaintiff Willie Robinson brings this three count complaint under 42 U.S.C. § 1983 against defendants Salvador A. Godinez, Warden of the Stateville Correctional Center, and Anthony Ramos, Superintendent of Segregation Unit II at Stateville. Presently before us is defendants' motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, defendants' motion is granted in part and denied in part.

 I. Background

 Plaintiff is one of the many inmates housed at the Stateville Correctional Center. He currently resides in Segregation Unit II, a portion of the prison where inmates are separated from each other for most of the day. Robinson complains that defendant Ramos prohibits inmates in Segregation Unit II from purchasing certain items at the commissary, such as canned goods and "anything else they want[]." Complaint, at 4. Apparently this prohibition applies only to inmates in segregation, and plaintiff contends that such a rule violates his federal and state rights, although he does not specifically indicate which ones.

 Robinson's second claim involves the reduction of his visitation time from two hours to only one hour. Plaintiff claims that this reduction in visitation time occurred upon his being assigned to segregation for a term of one year. Robinson contends that he complained to Godinez and Ramos about his visitation time in writing, but that neither of them have rectified the matter.

 Finally, plaintiff claims that the conditions in Segregation Unit II fall below the minimal standards set by the Eighth Amendment. In particular, plaintiff contends that there are problems with "Heat Ventalation [sic]; Cooling Ventalation [sic]; Unsanitation [sic] Toilet Area; Roaches; Unclean Bedding: because no supply is being passed out on a Weekly Basis; Unsanitation [sic] Food Preparation Area; Bed Bugs; Subfezzing [sic] Weather: because Broken Windows. . . ." Complaint at 4-5. Although plaintiff does not explain how he has been injured by these conditions, he does allege that they pose a dangerous risk to his health and well being.

 Defendants have moved to dismiss the complaint, arguing (1) that plaintiff's official capacity claims are barred by the Eleventh Amendment, (2) that plaintiff has failed to allege sufficient personal involvement by them in the alleged deprivations, and (3) that his complaints do not rise to the level of a constitutional violation. Plaintiff has filed a "Motion of Disposition" in response, asking us not to dismiss the complaint. As plaintiff's "Motion" is more akin to a response brief, we will consider it as such and deny his "Motion of Disposition" as moot.

 II. Discussion

 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Johnson v. Martin, 943 F.2d 15, 16 (7th Cir. 1991). At this stage in the litigation, we take plaintiff's version of the facts alleged in the complaint to be true, and construe all reasonable inferences in his favor. Bane v. Ferguson, 890 F.2d 11, 13 (7th Cir. 1989). Although unsupported conclusions of fact and conclusions of law are not sufficient to withstand a motion to dismiss, Cushing v. City of Chicago, 3 F.3d 1156, 1160-61 n.5 (7th Cir. 1993), pro se complaints such as this one are held to a lesser standard than are those written by practicing attorneys. Kelley v. McGinnis, 899 F.2d 612, 616 n.8 (7th Cir. 1990). *fn1"

 Plaintiff contends that defendants' restriction on the types of commissary items that may be purchased by inmates in segregation violates federal and state law. As plaintiff does not articulate what "law" he is referring to, we will examine his claim under the three most obvious possibilities. First, if plaintiff is raising a due process argument, he must demonstrate that he was deprived of a protected property or liberty interest in commissary privileges that arose out of state law or the federal constitution. See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989). Although Illinois prison regulations permit the establishment of commissaries, Ill. Admin. Code tit. 20, § 210.20(a), neither prison regulations nor state statutes establish a right to commissary privileges. See 730 ILCS 513-7-2a (regulating commissary prices); Ill. Admin. Code tit. 20, § 504.20(c) (prohibiting certain types of punishment, but not mentioning the restriction of commissary access). Nor can plaintiff reasonably contend that the Constitution embodies some right of a prisoner to purchase anything he wants from the commissary while in the custody of the state. See Campbell v. Miller, 787 F.2d 217, 222 (7th Cir.), cert. denied, 479 U.S. 1019, 93 L. Ed. 2d 724, 107 S. Ct. 673 (1986). Thus, plaintiff cannot prevail on a due process claim.

 Second, plaintiff's claim appears to raise an equal protection argument, since he alleges that the commissary privileges of segregation inmates were restricted, while the privileges of inmates in the general population were not effected. Although prison officials cannot base the allocation of jobs or resources on impermissible factors such as an inmate's race, see Black v. Lane, 824 F.2d 561, 562 (7th Cir. 1987), there is no indication that any such motivation was present in the instant case. Consequently, plaintiff cannot state an equal protection claim. See Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988) (segregation inmate failed to state a claim based on commissary restrictions).

 Finally, we analyze whether plaintiff has sufficiently alleged a violation of the Eighth Amendment stricture against cruel and unusual punishment. In order to state a claim under the Eight Amendment inmates must allege that prison officials acted with deliberate indifference to their health or safety, such that they were exposed to a substantial risk of serious harm. See Farmer v. Brennan, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1977 (1994). We need not address whether Robinson has alleged the requisite state of mind required by the Eighth Amendment, as his contention that he was denied commissary privileges does not implicate the "minimal civilized measure ...


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