United States District Court, S.D. Illinois
June 3, 2005.
CLIFFORD WILLIAMS BEY, Inmate #B54232, Plaintiff,
B. SPILLER, et al., Defendants.
The opinion of the court was delivered by: G. PATRICK MURPHY, Chief Judge, District
MEMORANDUM AND ORDER
Plaintiff, a former inmate in the Menard Correctional Center,
brings this action for deprivations of his constitutional rights
pursuant to 42 U.S.C. § 1983. Plaintiff previously was granted
leave to proceed in forma pauperis without payment of an
initial partial filing fee.
This case now is before the Court for a preliminary review of
the complaint pursuant to 28 U.S.C. § 1915A, which provides, in
(a) Screening. The court shall review, before
docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a
governmental entity or officer or employee of a
(b) Grounds for Dismissal. On review, the court
shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the
(1) is frivolous, malicious, or fails to state a
claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks
an arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319
, 325 (1989). After evaluating Plaintiff's
claims individually, the Court finds it appropriate to exercise its
authority under Section 1915A to dismiss those claims that are
frivolous before allowing Plaintiff to proceed with his remaining
claims. See House v. Belford, 956 F.2d 711
, 718-19 (7th
Plaintiff states that in June 2002 he witnessed Defendants
Childers and Holder beat a fellow inmate at Menard Correctional
Center. Plaintiff provided statements about the beating to Menard
Internal Affairs and to the Illinois State Police. Thereafter,
Defendant Childers came to Plaintiff's cell each night and
threatened him with retaliation if he did not "change his story."
Plaintiff filed numerous grievances regarding the harassment,
asking to be assigned to a different cell or to have Defendant
Childers removed from his cell house during the course of the
internal investigation. The grievances were denied.
Plaintiff states that from September 2002 to January 2003,
Defendants Albert, Hall, Holder, Childers, and other unknown
corrections officers refused to feed Plaintiff breakfast.
Furthermore, Defendants Spiller and Gales ordered Defendants
Mezo, Welborn, and Dunn to strip Plaintiff of all of his
property, turn off his water, and deny him soap, toothpaste,
sheets, mattress, access to showers, toilet paper, and access to
the law library for fifteen days.*fn1
Based on these allegations, Plaintiff argues that the actions
of Defendants violated the Eighth Amendment. Plaintiff argues
that these deprivations constituted "deliberate indifference" and
caused emotional and mental stress, which led to a "mental break
down" and caused Plaintiff to be put on anti-psychotic medication
and transferred to the Pontiac South Mental Correctional Center.
Plaintiff also argues that he was denied his right of access to
Plaintiff further states that in September 2002, Defendant
Rowland wrote a false disciplinary report against Plaintiff for assault. Defendant Holder filed a
corroborating incident report. Plaintiff argues that he was
denied due process because the adjustment committee held a
hearing on the report without him being present to prove that he
was innocent. Plaintiff alleges that the adjustment committee
falsified records to show that Plaintiff refused to appear but
did not obtain Plaintiff's signature on a "denial slip." As a
result, Plaintiff lost six months of good conduct credit, access
to the telephone, state pay, access to recreation with the
general population, and food items from the commissary.
Cruel and Unusual Conditions of Confinement
Plaintiff alleges that he was stripped of his personal
property, his water was shut off, and he was denied soap,
toothpaste, sheets, a mattress, access to showers, and toilet
paper for a period of fifteen days. In a case involving
conditions of confinement in a prison, two elements are required
to establish violations of the Eighth Amendment's cruel and
unusual punishments clause. First, an objective element requires
a showing that the conditions deny the inmate "the minimal
civilized measure of life's necessities," creating an excessive
risk to the inmate's health or safety. Farmer v. Brennan,
511 U.S. 825, 834 (1994). The second requirement is a subjective
element establishing a defendant's culpable state of mind.
Id. Based on these standards, Plaintiff's claims cannot be
dismissed at this time. 28 U.S.C. § 1915A; see Kimbrough v.
O'Neill, 523 F.2d 1057, 1059 (7th Cir. 1975) (plaintiff
stated claim under § 1983 where he was subjected to three days in
solitary confinement without water, toilet, mattress, bedding, or
personal hygiene items).
Denial of Meals
Plaintiff alleges that he was denied breakfast from September
2002 to January 2003. In some circumstances, a prisoner's
allegations of denial of food may satisfy the elements required
to show an Eighth Amendment violation. The Seventh Circuit Court of
Appeals has held that the denial of food is not a per se
violation of the Eighth Amendment. Rather, a district court "must
assess the amount and duration of the deprivation." Reed v.
McBride, 178 F.3d 849, 853 (7th Cir. 1999); see generally
Wilson v. Seiter, 501 U.S. 294, 304 (1991) (it would be an
Eighth Amendment violation to deny a prisoner of an "identifiable
human need such as food"); Sanville v. McCaughtry,
266 F.3d 724, 734 (7th Cir. 2001) (withholding food from an inmate
can, in some circumstances, satisfy the first Farmer prong);
Talib v. Gilley, 138 F.3d 211, 214 n. 3 (5th Cir. 1998)
(noting that denial of one out of every nine meals is not a
constitutional violation); Cooper v. Sheriff of Lubbock County,
929 F.2d 1078 (5th Cir. 1991) (finding failure to feed a
prisoner for twelve days unconstitutional); Cunningham v.
Jones, 567 F.2d 653, 669 (6th Cir. 1977), app. after
remand, 667 F.2d 565 (1982) (feeding inmates only once a day for
15 days would constitute cruel and unusual punishment only if it
"deprive[s] the prisoners concerned . . . of sufficient food to
maintain normal health"). Based on these standards, this claim
cannot be dismissed at this point in the litigation.
28 U.S.C. § 1915A.
Denial of Access to Law Library
Plaintiff alleges that during the fifteen day period, he also
was denied access to the prison law library.
Prison officials have an affirmative duty to provide
inmates with reasonable access to courts, which
includes providing access to adequate libraries (or
counsel). DeMallory v. Cullen, 855 F.2d 442, 446
(7th Cir. 1988). The right of access "requires
prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law."
Bounds v. Smith, 430 U.S. 817, 828 (1977).
Nonetheless, reasonable access does not mean
unlimited access. Hossman v. Sprandlin,
812 F.2d 1019, 1021 (7th Cir. 1987).
Martin v. Davies, 917 F.2d 336
, 338 (7th Cir. 1990).
Violations of the right of access to the courts may be vindicated in federal court in a civil rights action
pursuant to 42 U.S.C. § 1983. An allegation of actual or
threatened detriment is an essential element of a § 1983 action
for denial of access to the courts. Martin v. Davies,
917 F.2d at 340; Howland v. Kilquist, 833 F.2d 639
, 642-43 (7th Cir.
1987); Hossman v. Sprandlin, 812 F.2d at 1021-22. Such an
allegation must be more than merely conclusory, and a complaint
is inadequate if it "offers no specific facts to support these
allegations no court dates missed; no inability to make timely
filings; no denial of legal assistance to which he was entitled;
and no loss of a case which could have been won." Martin v.
Davies, 917 F.2d at 340. Plaintiff here does not make any
specific allegations that he missed a court deadline or that he
lost a case as a result of the deprivation; he merely alleges
that he could not go to the law library during that period.
Without more, Plaintiff does not state a constitutional claim. As
such, this claim is DISMISSED.
"A complaint states a claim for retaliation when it sets forth
`a chronology of events from which retaliation may plausibly be
inferred.'" Zimmerman v. Tribble, 226 F.3d 568, 573 (7th
Cir. 2000) (citation omitted). In this case, Plaintiff alleges
that Defendants stripped his cell, shut off his water, denied him
meals and access to the law library, and filed a false
disciplinary report against him, all after he had been threatened
with retaliation if he did not "change his story" in an internal
and Illinois State Police investigation of the beating of another
inmate. Such a chronology arguably presents a colorable claim of
retaliation; therefore, the Court is unable to dismiss this
retaliation claim at this point in the litigation.
28 U.S.C. § 1915A; see Zimmerman, 226 F.3d at 574 (reversing district
court's § 1915A dismissal because inmate's allegations
established that "the exercise of his [First Amendment] right was
closely followed by the retaliatory act"). Denial of Due Process
Plaintiff states that he was denied due process in a
disciplinary proceeding that resulted in the loss of six months
of good conduct credit. Specifically, Plaintiff alleges that the
disciplinary hearing was held without him. Plaintiff may not
bring this type of claim in a 42 U.S.C. § 1983 action. Instead,
it should be brought in an action for habeas corpus after
exhaustion of remedies through the Illinois state courts. See,
e.g., Heck v. Humphrey, 512 U.S. 477, 480-81 (1994); Clayton-EL
v. Fisher, 96 F.3d 236, 242 (7th Cir. 1996); Simpson v.
Rowan, 73 F.3d 134, 136 (7th Cir. 1995); Viens v. Daniels,
871 F.2d 1328, 1333-34 (7th Cir. 1989). The Illinois courts
have recognized mandamus as an appropriate remedy to compel
prison officials to award sentence credit to a prisoner. Taylor
v. Franzen, 417 N.E.2d 242, 247, aff'd on reh'g,
420 N.E.2d 1203 (Ill.App. 1981); see also United States ex rel. Isaac v.
Franzen, 531 F. Supp. 1086, 1091-94 (N.D. Ill. 1982). The State
of Illinois must first be afforded an opportunity, in a mandamus
action pursuant to 735 ILCS 5/14-101 et seq., to consider the
merits of Plaintiff's claim. Plaintiff must exhaust his state
court remedies before bringing his claims to federal court.
Accordingly, this claim is DISMISSED without prejudice to
Plaintiff bringing the claims through habeas corpus after
exhaustion of state remedies.
A defendant cannot be held liable for damages in a civil rights
action for wrongs in which he had no personal involvement. Eades
v. Thompson, 823 F.2d 1055, 1063 (7th Cir. 1987); Duncan v.
Duckworth, 644 F.2d 653, 655-56 (7th Cir. 1981). Plaintiff
names Jonathan R. Walls as a Defendant in the action, but does
not make any specific allegations against him. Accordingly,
Defendant Walls is DISMISSED from the action. In summary, Plaintiff's claims of violations of the Eighth
Amendment and retaliation are allowed to go forward. Plaintiff's
claims of denial of the access to courts and due process
violations during his disciplinary hearing are DISMISSED.
28 U.S.C. § 1915A.
IT IS HEREBY ORDERED that Plaintiff shall complete and submit
USM-285 forms for Defendants SPILLER, GALES, ROWLAND, CHILDERS,
ALBERT, HOLDER, and HALL within THIRTY (30) DAYS of the date
of entry of this Memorandum and Order.*fn2 The Clerk of
Court is DIRECTED to send Plaintiff seven (7) USM-285 forms
with Plaintiff's copy of this Memorandum and Order. Plaintiff is
advised that service will not be made on a Defendant until
Plaintiff submits a properly completed USM-285 form for that
The Clerk is DIRECTED to prepare Form 1A (Notice of Lawsuit
and Request for Waiver of Service of Summons) and Form 1B (Waiver
of Service of Summons) for Defendants SPILLER, GALES, DUNN,
MEZO, WELBORN, ROWLAND, CHILDERS, ALBERT, HOLDER, and HALL. The
Clerk shall forward those forms, USM-285 forms submitted by
Plaintiff, and sufficient copies of the complaint and this
Memorandum and Order to the United States Marshal for service.
The United States Marshal is DIRECTED, pursuant to Rule
4(c)(2) of the Federal Rules of Civil Procedure, to serve process
on Defendants SPILLER, GALES, DUNN, MEZO, WELBORN, ROWLAND,
CHILDERS, ALBERT, HOLDER, and HALL in the manner specified by
Rule 4(d)(2) of the Federal Rules of Civil Procedure. Process in
this case shall consist of the complaint, applicable Forms 1A and
1B, and this Memorandum and Order. For purposes of computing the
passage of time under Rule 4(d)(2), the Court and all parties
will compute time as of the date it is mailed by the Marshal, as noted on the USM-285 form.
With respect to former employees of the Illinois Department of
Corrections ("IDOC") who no longer can be found at the work
address provided by Plaintiff, IDOC shall furnish the Marshal
with that Defendant's last-known address upon issuance of a Court
order which states that the information shall be used only for
purposes of effectuating service (or for proof of service, should
a dispute arise) and any documentation of the address shall be
retained only by the Marshal. Address information obtained from
IDOC pursuant to such order shall not be maintained in the Court
file nor disclosed by the Marshal.
The United States Marshal shall file returned waivers of
service as well as any requests for waivers of service that are
returned as undelivered as soon as they are received. If a waiver
of service is not returned by a Defendant within THIRTY (30)
DAYS from the date of mailing the request for waiver, the United
States Marshal shall:
Request that the Clerk of Court prepare a summons
for that Defendant who has not yet returned a waiver
of service; the Clerk shall then prepare such summons
Personally serve process and a copy of this
Memorandum and Order upon that Defendant pursuant to
Rule 4 of the Federal Rules of Civil Procedure and
28 U.S.C. § 566(c).
Within ten days after personal service is effected,
the United States Marshal shall file the return of
service for that Defendant, along with evidence of
any attempts to secure a waiver of service of process
and of the costs subsequently incurred in effecting
service on said Defendant. Said costs shall be
enumerated on the USM-285 form and shall include the
costs incurred by the Marshal's office for
photocopying additional copies of the summons and
complaint and for preparing new USM-285 forms, if
required. Costs of service will be taxed against the
personally-served Defendant in accordance with the
provisions of Federal Rule of Civil Procedure 4(d)(2)
unless that Defendant shows good cause for such
Plaintiff is ORDERED to serve upon Defendants or, if
appearance has been entered by counsel, upon their attorneys, a copy of every further pleading
or other document submitted for consideration by this Court. He
shall include with the original paper to be filed with the Clerk
of the Court a certificate stating the date that a true and
correct copy of any document was mailed to Defendants or their
counsel. Any paper received by a district judge or magistrate
judge which has not been filed with the Clerk or which fails to
include a certificate of service will be disregarded by the
Defendants are ORDERED to timely file an appropriate
responsive pleading to the complaint and shall not waive filing a
reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule of the United States District Court for
the Southern District of Illinois 72.1(a)(2), this action is
REFERRED to a United States Magistrate Judge for further
Further, this entire matter is REFERRED to a United States
Magistrate Judge for disposition, as contemplated by Local Rule
72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties
consent to such a referral.
Plaintiff is under a continuing obligation to keep the Clerk
and each opposing party informed of any change in his
whereabouts. This shall be done in writing and not later than
seven (7) days after a transfer or other change in address
occurs. Failure to do so will result in dismissal of this action
under Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.