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FOWLER v. BOYKIN

May 20, 2003

PETER FOWLER, PLAINTIFF, VS. MARVIN BOYKIN, LAW LIBRARY SUPERVISOR; SGT. (JANE) COLLIER, BADGE NO. 922; LAWRENCE X. O'REILLY, ASSISTANT STATE'S ATTORNEY; MICHAEL F. SHEAHAN, SHERIFF OF COOK COUNTY, DEFENDANTS.


The opinion of the court was delivered by: Charles P. Kocoras, Chief United States District Judge

MEMORANDUM OPINION

This matter is before the court on the 28 U.S.C. § 1915A review of Plaintiff Peter Fowler's ("Fowler") complaint. For the reasons stated below we dismiss the complaint in part.

BACKGROUND

Fowler, a pretrial detainee at the Cook County Correctional Center, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 ("Section 1983"). Fowler claims that Defendants violated his constitutional rights by interfering with his access to the courts and by denying him due process. Fowler alleges that he was repeatedly denied access to the prison law library by Marvin Boykin ("Boykin"), the librarian, despite the fact that the trial judge had issued an order allowing Fowler access to the law library until his court date on March 18, 2002. Fowler claims that he filled out a grievance and gave the grievance to Sergeant Collier ("Collier"), and that fifteen minutes later Collier searched Fowler's cell in retaliation for the filing of the grievance. Collier found pages ripped from books in the law library and other materials from the law library in Fowler's cell. Fowler claims that he showed Collier legal materials on the counter in the common area and told Collier that he obtained the materials found in his cell from the counter rather than from the library. Fowler further alleges that Collier took the materials from the counter, threw them in the trash can, and refused to acknowledge that she ever saw the materials on the counter. The prison guard on the tier at the time of the incident allegedly saw Collier throwing out the materials, but told Fowler that he could not "get involved." Fowler also claims that another prisoner saw Collier throwing the materials in the trash can. Fowler was charged with taking law library materials and damaging library materials and was found guilty in a disciplinary hearing before a disciplinary hearing board. Fowler claims that his due process rights were violated at the disciplinary hearing because he was not allowed to introduce as evidence a video tape from a security camera in the law library which Fowler contends would prove that he is innocent. On April 3, 2002, after Fowler was found guilty by the disciplinary board, the trial judge entered an order denying Fowler access to the prison law library. By minute order of March 5, 2003, we denied Fowler leave to proceed in forma pauperis. Fowler has now paid the full statutory filing fee as directed.

LEGAL STANDARD

Pursuant to 28 U.S.C. § 1915A, a district court is required to conduct a prompt initial review of civil actions brought by prisoners against governmental entities or employees. The review is to be done before docketing or "as soon as practicable after docketing." 28 U.S.C. § 1915A(a). The court must dismiss the complaint to the extent that it "is frivolous, malicious, or fails to state a claim upon which relief may be granted,] or . . . seeks monetary relief from a defendant who is immune from such relief" 28 U.S.C. § 1915A(b). We also note that Fowler has filed his complaint pro se and thus his complaint is entitled to a liberal reading. See Haines v. Kerner, 404 U.S. 519, 520 (1972)(stating that a pro se complaints are held to a less stringent standard than those prepared by attorneys).

DISCUSSION

I. Procedural Due Process Claim

Fowler claims that he was denied due process at the disciplinary hearing because Collier's false report was relied upon, witnesses were pressured not to testify on his behalf, and he was not allowed to introduce a video tape as evidence. To state a Section 1983 claim for a violation of the right to procedural due process a plaintiff must allege that he was deprived of an interest protected by the Constitution or laws of the United States without legal due process and the actor that caused the deprivation is a state actor. Wright v. Associated Insurance Cos. Inc., 29 F.3d 1244, 1249 (7th Cir. 1994). See also Rapier v. Harris, 172 F.3d 999, 1004-05 (7th Cir. 1999) (stating that a pretrial detainee can be punished for misconduct while in pretrial custody, but, the detainee is entitled to some type of "procedural protection" to ensure that his due process rights are not violated). We note that although Fowler contends that his due process rights were violated at the disciplinary hearing because he was not allowed to introduce the video tape as evidence, Fowler does not allege that any of the named defendants took part in the decision to preclude the introduction of the tape. Therefore, we dismiss the complaint to the extent that it is based on the refusal to allow in the video tape as evidence at the disciplinary hearing.

Fowler claims that he was denied due process because the disciplinary committee relied on the false report prepared by Collier and witnesses refused to testify on Fowler's behalf. To satisfy a prisoner's due process rights a prison disciplinary board must: 1) provide the prisoner with written notice of the charge, 2) allow the prisoner to appear at hearing, 3) allow the prisoner to call witnesses and present documentary evidence to the extent that it does not interfere with other institutional interests, and 4) provide the prisoner with a written statement of reasons for the disciplinary board's ultimate decision. Black v. Lane, 22 F.3d 1395, 1402 n. 9 (7th Cir. 1994). If a prisoner alleges that a disciplinary hearing ruling is based on false testimony by prison officials, then the prisoner may state a claim for a violation of his procedural due process rights. See id. at 1402 (7th Cir. 1994) (holding that prisoner stated a claim alleging a violation of his procedural due process rights where he alleged that prison guards filed false disciplinary charges which were repeatedly approved by disciplinary board despite the fact that the charges were "not supported by some evidence.").

Fowler claims that the disciplinary board based its ruling on the false report submitted by Collier. In addition he also alleges that the tier guard saw Collier throw out the materials but told Fowler that he would not get involved. Fowler also alleges that another prisoner saw Collier throw out the materials. A reasonable inference from the complaint is that neither the tier guard or the other prisoner testified at the disciplinary hearing. Perhaps Fowler could have called them as witnesses and chose not to, but we have no such information before us. The fact that the tier guard refused to come forth on Fowler' s behalf and the fact that the other prisoner did not testify raises concerns that they felt pressured not to speak out on Fowler' s behalf. Thus, there are indications from the complaint that Fowler's right to call witnesses was hindered by Collier as well. Therefore, we find that the procedural due process claim against Collier stands.

II. Substantive Due Process Claim

If a prison guard files false charges against a prisoner, the filing of the false "disciplinary charges can amount to a violation of substantive due process if the charges were in retaliation for the exercise of a constitutional right." Black, 22 F.3d at 1402. To state a claim for retaliation a prisoner need only allege "a chronology of events from which retaliation may plausibly be inferred." Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988). Retaliation against a prisoner for filing a grievance may be unconstitutional because the filing of a grievance may constitute speech that is protected by the free speech or petition clauses of the First Amendment or by the right of meaningful access to the courts. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002); Geder v. Godinez, 875 F. Supp. 1334, 1338 (N.D.Ill. 1995). See also Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996).

In Zimmerman v. Tribble, 226 F.3d 568 (7th Cir. 2000), the Seventh Circuit dealt with a set of facts similar to the ones before us. In Zimmerman, the appellate court evaluated a district court's 28 U.S.C. ยง 1915A review, which is the type of review now before us. 226 F.3d at 571, 573. In Zimmerman, the plaintiff inmate brought a Section 1983 action and alleged that the prison librarian denied him access to the prison library. Id. at 573. In the case before us, Fowler asserts that Boykin initially denied him access on March 25, 26, 27, 28, and 29, 2002. The plaintiff in Zimmerman alleged that he filed a grievance against the librarian and that the librarian continued to deny him access to the library in retaliation for the filing of the grievance. Id. Fowler has made the same allegations in the case before us. However, Fowler's case is distinguishable because, unlike in Zimmerman, there was a court order prohibiting Boykin from allowing Fowler into the library after April 3, 2002. Also, the exhibits submitted by Fowler clearly indicate that the order giving him permission to use the library expired on March 18, 2002. Therefore, we find that there is no retaliation claim stated against Boykin. Fowler does allege that Collier ...


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