United States District Court, S.D. Illinois
June 15, 2005.
ROBERT ALLEN, Plaintiff,
A. RAMOS, R. TURNER, ROY L. GRATHLER, ANTHONY R. BAUER, KAY A. SURMAN, ANDREW N. WILSON, and JONATHAN R. WALLS, Defendants.
The opinion of the court was delivered by: J. PHIL GILBERT, District Judge
MEMORANDUM AND ORDER
Plaintiff, an 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, and he has tendered his
initial partial filing fee as ordered.
To facilitate the orderly management of future proceedings in
this case, and in accordance with the objectives of Federal Rules
of Civil Procedure 8(f) and 10(b), the Court finds it appropriate
to break the claims in Plaintiff's pro se complaint and
supporting exhibits into numbered counts, as shown below. The
parties and the Court will use these designations in all future
pleadings and orders, unless otherwise directed by a judicial
officer of this Court. The designation of these counts does not
constitute an opinion as to their merit.
COUNT 1: Against Defendants Ramos and Turner for
damage to his property.
COUNT 2: Against Defendant Walls for failure to
COUNT 3: Against Defendant Ramos for retaliation. COUNT 4: Against Defendant Surman for failure to
provide proper due process.
COUNT 5: Against Defendant Ramos for depriving him
COUNT 6: Against Defendant Grathler for harassment.
COUNT 7: Against Defendant Bauer for failure to
provide proper due process.
COUNT 8: Against Defendant Grathler for failure to
provide proper due process.
COUNT 9: Against Defendant Walls for denying his
This case is now before the Court for a preliminary review of
the complaint pursuant to 28 U.S.C. § 1915A, which provides:
(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). Upon careful review of the
complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; portions of
this action are legally frivolous and thus subject to summary
On January 21, 2002, Plaintiff went to morning recreation. When
he returned, he found his radio/cassette player on the floor of
his cell with two buttons missing.
Plaintiff's first claim is that his radio was damaged to harass
him. The only constitutional right that might be implicated by
these facts is Plaintiff's right, under the Fourteenth Amendment, to be free from deprivations of his property by state actors
without due process of law. To state a claim under the due
process clause of the Fourteenth Amendment, Plaintiff must
establish a deprivation of liberty or property without due
process of law; if the state provides an adequate remedy,
plaintiff has no civil rights claim. Hudson v. Palmer,
468 U.S. 517, 530-36 (1984) (availability of damages remedy in state
claims court is an adequate, post-deprivation remedy). The
Seventh Circuit has found that Illinois provides an adequate
post-deprivation remedy in an action for damages in the Illinois
Court of Claims. Murdock v. Washington, 193 F.3d 510, 513
(7th Cir. 1999); Stewart v. McGinnis, 5 F.3d 1031, 1036
(7th Cir. 1993); 705 ILCS 505/8 (1995). Accordingly,
Plaintiff has no claim under Section 1983, and Count 1 is
dismissed from this action with prejudice.
Upset about his broken radio, Plaintiff filed a grievance over
this matter, alleging that the radio had been broken deliberately
by Turner on the orders of Ramos in order to harass him. His next
claim is that Walls refused to consider his grievance over his
broken radio under the "emergency grievance" procedures.
Although an inmate "may request a grievance be handled on an
emergency basis," such a request will be granted only if "the
Chief Administrative Officer determines that there is a
substantial risk of imminent personal injury or other serious or
irreparable harm to the offender. . . ."
20 Ill. Adm. Code § 504.840. The Court finds, as a matter of law, that a broken radio
does not constitute such an emergency and, as such, Plaintiff
suffered no constitutional violation by Walls's refusal to
consider his grievance as an emergency. Therefore, Count 2 is
dismissed from this action with prejudice. COUNT 3
Two weeks after Plaintiff accused Ramos and Turner of
deliberately breaking his radio, Ramos issued a disciplinary
ticket to Plaintiff for providing false information, damage or
misuse of property, insolence, and disobeying a direct order.
Plaintiff contends that this ticket was written solely in
retaliation for Plaintiff's complaint to Walls about the broken
Prison officials may not retaliate against inmates for filing
grievances or otherwise complaining about their conditions of
confinement. See, e.g., Walker v. Thompson, 288 F.3d 1005
(7th Cir. 2002); DeWalt v. Carter, 224 F.3d 607 (7th
Cir. 2000); Babcock v. White, 102 F.3d 267 (7th Cir. 1996);
Cain v. Lane, 857 F.2d 1139 (7th Cir. 1988). Furthermore,
"[a]ll that need be specified is the bare minimum facts necessary
to put the defendant on notice of the claim so that he can file
an answer." Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.
Applying these standards to the allegations in the complaint,
the Court is unable to dismiss this retaliation claim against
Ramos at this point.
Plaintiff claims that Surman did not provide him with proper
due process regarding the February 27 ticket written by Ramos,
thus unjustly punishing him with the loss of one month of
commissary privilege and a demotion to C-grade for one month.
When a plaintiff brings an action under § 1983 for procedural
due process violations, he must show that the state deprived him
of a constitutionally protected interest in "life, liberty, or
property" without due process of law. Zinermon v. Burch,
494 U.S. 113, 125 (1990). However, Plaintiff has no protected liberty
interest in a demotion to C-grade status or a loss of commissary
privileges. See, e.g., Thomas v. Ramos, 130 F.3d 754, 762 n. 8
(7th Cir. 1997) (and cases cited therein). Therefore, his allegations do not present a viable constitutional
claim, and Count 4 is dismissed from this action with prejudice.
Plaintiff is upset because Ramos deprived him of lunch and
dinner on or about May 15, 2002. According to the exhibits,
Plaintiff lost his prisoner identification card in the recreation
yard that morning and, per I.D.O.C. policy, he was not allowed to
leave his cell to go to the dining hall. The exhibits indicate
that Plaintiff was served meals in his cell; Plaintiff alleges
that he was not fed at all and, for purposes of this order, the
Court will assume that Plaintiff's version is correct.
To establish a violation of the Eighth Amendment, a prisoner
must prove two elements: (1) the deprivation alleged is
sufficiently serious such that it resulted in the "denial of the
minimal civilized measure of life's necessities" and (2) prison
officials knew of a substantial risk to the prisoner but failed
to take reasonable steps to prevent the harm from occurring.
Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999)
(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). In some
circumstances, a prisoner's claim that he was denied food may
satisfy the first element but, as the Seventh Circuit has held,
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)
(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."); Robbins v. South, 595 F.Supp. 785,
789 (D.Mont. 1984) (requiring inmate to eat his meals in less
than 15 minutes does not amount to cruel and unusual punishment).
Plaintiff here missed two meals, but he was does not allege
harm to his health; his claim therefore does not rise to the
level of a constitutional violation. Accordingly, Count 5 is
dismissed from this action with prejudice.
Plaintiff next complains about harassment and confiscation of
his property by Grathler. On July 16, 2002, Plaintiff was going
to recreation. Grathler noticed that he appeared to be concealing
something in his hands, so Grathler ordered Plaintiff to show him
what he was carrying. Plaintiff refused to comply with that order
and became verbally abusive. Grathler then confiscated the item
a face cloth, or wash cloth and threw it into the trash.
Grathler then issued a disciplinary ticket for intimidation or
threats, insolence, and disobeying a direct order. Plaintiff was
found guilty, resulting in the loss of yard and commissary
privileges for two months, a two-month demotion to C-grade, and
two months in segregation.
As stated above, when bringing an action under § 1983 for
procedural due process violations, Plaintiff must show that the
state deprived him of a constitutionally protected interest in
"life, liberty, or property" without due process of law.
Zinermon, supra, 494 U.S. at 125. In this claim, Plaintiff
alleges that he was placed in disciplinary segregation for two
months in violation of his right to procedural due process. However, he has no protected
liberty interest in remaining in general population. See, e.g.,
Thomas, supra, 130 F.3d at 760-62 (70 days in segregation not
atypical and significant hardship); Wagner v. Hanks,
128 F.3d 1173, 1175-76 (7th Cir. 1997) (rejecting claim that prisoner
was improperly held one year in disciplinary confinement);
Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995) (six
months in segregation not atypical and significant hardship). Nor
does he have a protected liberty interest in commissary, yard or
grade level. Thomas, 130 F.3d at 762 n. 8. Therefore, he has no
claim regarding this disciplinary proceeding.
The only other constitutional right that might be implicated by
these facts is Plaintiff's right, under the Fourteenth Amendment,
to be free from deprivations of his property by state actors
without due process of law. However, as discussed above in Count
1, Illinois provides an adequate post-deprivation remedy in an
action for damages in the Illinois Court of Claims. Therefore,
Plaintiff has no claim under Section 1983, and Count 6 is
dismissed from this action with prejudice.
Later in the day on July 16, Bauer was performing a cell check
and directed Plaintiff to show his identification card. Plaintiff
refused and became verbally abusive, so Bauer issued Plaintiff a
disciplinary ticket for concealment of identity, insolence, and
disobeying a direct order. Plaintiff was found guilty, resulting
in one month in segregation, a one-month demotion to C-grade, and
the loss of commissary privilege for one month.
As explained above in Count 6, Plaintiff has no protected
liberty interest in remaining in general population, or in his
grade level, or in commissary privilege. Therefore, Count 7 is
dismissed from this action with prejudice.
COUNT 8 On July 29, 2002, it seems Plaintiff was yelling loudly in the
cell house, Grathler directed him to stop, Plaintiff refused and
became verbally abusive. Grathler issued Plaintiff a disciplinary
ticket for intimidation or threats and disobeying a direct order.
This ticket led to a two-month term of the loss of commissary
privilege, a demotion to C-grade and time in segregation. No
protected liberty interest is implicated by these sanctions, and
Count 8 is dismissed from this action with prejudice.
On October 10, 2002, Plaintiff fell on the stairs while
handcuffed, bruising his knee and ribs. He filed a grievance over
the matter, claiming that the lead officer failed to follow
Department policy, thus resulting in Plaintiff's fall. That
grievance was denied, and this final claim simply voices
Plaintiff's dissatisfaction with that denial.
"[A] state's inmate grievance procedures do not give rise to a
liberty interest protected by the due process clause." Antonelli
v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1995). The
Constitution requires no procedure at all, and the failure of
state prison officials to follow their own procedures does not,
of itself, violate the Constitution. Maust v. Headley,
959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091
(7th Cir. 1982). Accordingly, Count 9 is dismissed from this
action with prejudice.
As a final matter, Plaintiff lists Andrew Wilson as a defendant
in the caption of his complaint. However, the statement of claim
does not include any allegations against Wilson. "A plaintiff
cannot state a claim against a defendant by including the
defendant's name in the caption." Collins v. Kibort,
143 F.3d 331, 334 (7th Cir. 1998). Accordingly, Wilson is dismissed
from this action with prejudice.
IT IS HEREBY ORDERED that COUNT 1, COUNT 2, COUNT 4, COUNT
5, COUNT 6, COUNT 7, COUNT 8 and COUNT 9 are DISMISSED from
this action with prejudice.
IT IS FURTHER ORDERED that Defendants BAUER, GRATHLER,
SURMAN, TURNER, WALLS and WILSON are DISMISSED from this
action with prejudice, as no claims remain pending against them.
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 Defendant RAMOS. The Clerk shall
forward those forms, USM-285 forms submitted by Plaintiff, and
sufficient copies of the complaint to the United States Marshal
The United States Marshal is DIRECTED, pursuant to Rule
4(c)(2) of the Federal Rules of Civil Procedure, to serve process
on Defendant RAMOS 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
With respect to former employees of Illinois Department of
Corrections who no longer can be found at the work address
provided by Plaintiff, the Department of Corrections shall
furnish the Marshal with the 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 I.D.O.C. pursuant to this order
shall not be maintained in the court file, nor disclosed by the
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 prepare a summons for that
defendant who has not yet returned a waiver of
service; the Clerk shall then prepare such summons as
Personally serve process and a copy of this Order
upon the 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 the 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 the defendant shows good cause for such
Plaintiff is ORDERED to serve upon defendant or, if
appearance has been entered by counsel, upon that attorney, 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 defendant or his 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 Court.
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 72.1(a)(2), this cause is REFERRED to
a United States Magistrate Judge for further pre-trial
Further, this entire matter is hereby 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.
IT IS SO ORDERED.
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