The opinion of the court was delivered by: Robert W. Gettleman, United States District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Thomas Segreti, formerly a prisoner in the custody of the Illinois Department of Corrections, has brought a two count, second amended complaint against Defendants Supervisor Arthur Gillen and Correctional Officers Edward and Crisler, pursuant to the 4th 5th and 14th Amendments of the U.S. Constitution and 42 U.S.C. § 1983. In Count 1, plaintiff seeks compensatory and punitive damages, based on an alleged retaliatory transfer. Count 11 seeks compensatory and punitive damages, based on an alleged deprivation of a "synthetic liberty interest" in violation of the Due Process Clause of the 14th Amendment.
Defendants move to dismiss Count I for failure to state a claim, claiming plaintiff has not alleged the necessary chronology of events for a retaliatory transfer claim. Defendants further move to dismiss Count I against defendant Gillen, claiming he was not personally involved in the retaliation, and move to dismiss against all defendants, asserting they are protected as State employees under qualified immunity.
Defendants also move to dismiss Count II, alleging that plaintiff does not have a properly interest in not being transferred to another prison or in maintaining eligibility for a work-release program. Defendants have further moved to dismiss both Counts I and II, asserting that plaintiff did not serve defendants a summons for his original complaint within 120 days as required by Fed.R.Civ.P. 4. For the reasons stated below, defendants' motion is denied.
Prior to June 29, 2001, plaintiff was convicted of a criminal offense and sentenced to incarceration in the custody of IDOC. Beginning on or before June 29, 2001, plaintiff was placed in the work-release program, which allowed him to engage in "outside employment." On June 29 and June 30, plaintiff reported to his work at City Automotive Group and returned to the Transition Center, in accordance with the procedures of the work-release program. On July 2, 2001, plaintiff left for work, and when he returned to the Transition Center, he was confronted by Defendant Gillen who "falsely" advised plaintiff that his movement off the Center was not approved. According to plaintiff, Gillen became "agitated and verbally abusive" when plaintiff attempted to explain that he had been following proper procedure.
On July 3, 2001, plaintiff prepared a written grievance against Gillen, describing the confrontation from the previous evening. Plaintiff submitted the grievance to his counselor, Ms. George. After submitting this grievance, Gillen filed an Inmate Disciplinary Report ("I.D.R.") against plaintiff in which he was charged with violating the Illinois Administrative Code, specifically "Giving False Information to an Employee," "Insolence," and "Unauthorized Movement." Plaintiff claims that Gillen filed these charges even though he knew them to be false.
In response to the grievance, an Adjustment Committee Hearing was held by defendants Emerson and Crisler on July 5, 2001. Gillen was allowed to participate in the deliberations of the hearing and dictated its result. On the same date, plaintiff was transferred out of the Transition Center and sent to Joliet Correctional Center.
Standard for Motions to Dismiss
A complaint should not be dismissed for failure to state a claim pursuant to Fed.R. Civ. P. 12(b)(6) unless "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hartford Fire Insurance Co. v. California, 509 U.S. 764, 113 S.Ct. 2891, 2917 (1993). The court accepts as true all of the plaintiff's well pled factual allegations, and gives the plaintiff the benefit of every reasonable inference that it may draw from these facts. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1979); Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir. 1981).
Defendants move to dismiss all counts generally, based on alleged procedural flaws. Defendants claim that plaintiff did not serve them timely with the original complaint and summons, and also that plaintiff failed to comply with the court's December 3, 2001, order granting plaintiff sixty days to file a second amended complaint.
Plaintiff filed his original complaint pro se on October 11, 2001. Plaintiff did not serve this original complaint on defendants. On December 3, 2001, this court granted leave for plaintiff to file a second amended complaint within sixty days, and appointed counsel who subsequently sought relief from his appointment on January 10, 2002. Thai request was granted on February 25, 2002, and the court appointed substitute counsel. That appointed counsel, however, was granted leave to withdraw on March 20, 2002. Then on March 25, 2002, Paul E. Wojcicki was appointed as plaintiff's counsel. On July 11, 2002, this court granted leave for plaintiff to file his second amended complaint. Plaintiff then served the second amended complaint and summons within the 120 day requirement of Fed.R.Civ.P. 4, and defendants waived service.
This court granted plaintiff's July 11, 2002, motion to life a second amended complaint because plaintiff had been involved with a series of different court appointed counsel Fed.R.Civ.P. 4(m) provides that "if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period." Fed. Rule Civ. Pro. 4(m). This court granted its July 11, 2002, order pursuant to this rule. Plaintiff then complied with that order and served defendants within the 120 day service period. Further, defendants then waived service. Because plaintiff complied with this ...