United States District Court, S.D. Illinois
August 12, 2005.
DENNIS TEAGUE, Plaintiff,
C/O PHILLIPS, EDWIN BOWEN, A.R. WISELY, and UNKNOWN PARTIES, Defendants.
The opinion of the court was delivered by: JAMES FOREMAN, District Judge
MEMORANDUM AND ORDER
Plaintiff, formerly an inmate in the Centralia 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 was not
required to pay an initial partial filing fee.
Plaintiff presents five separate claims in this action, and the
Court has added a sixth claim to the list; all six are summarized
here for clarity:
COUNT 1: Against Defendant Phillips for failure to
protect him from assault, in violation of his rights
under the Eighth Amendment.
COUNT 2: Against Bowen and Unknown Defendants 1-2
for not providing him with proper due process, in
violation of his rights under the Fourteenth
COUNT 3: Against Defendants Phillips, Bowen and
Unknown Defendants 1-2 for violating his rights under
the constitution of the state of Illinois.
COUNT 4: Against Defendants Phillips, Bowen and
Unknown Defendants 1-2 for violating his rights under
Illinois state law. COUNT 5: Against Defendants Phillips, Bowen and
Unknown Defendants 1-2 for violating his rights under
the rules of the Illinois Department of Corrections.
COUNT 6: Against Defendants Bowen, Wisely, and
Unknown Parties 3-5 for deliberate indifference to
his health and safety, in violation of his rights
under the Eighth Amendment.
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
Plaintiff states he suffers from a mental deficiency as well as
attention deficit disorder. On November 23, 2003, while in the
Centralia Correctional Center, he became fearful that another
inmate, Robert Gray, was planning to "take advantage" of his
disabilities by "pressuring him with physical abuse." Plaintiff
advised Defendant Phillips of his concerns, but Phillips took no
action. The next night, November 24, Gray sexually assaulted
Plaintiff. The next morning, November 25, Plaintiff reported the
assault to Phillips; Phillips had him taken to the medical unit,
and an examination confirmed that a sexual assault had taken place.
Plaintiff was then taken to segregation.
In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court
held that "prison officials have a duty . . . to protect
prisoners from violence at the hands of other prisoners." Id.
at 833 (internal citations omitted); see also Luttrell v.
Nickel, 129 F.3d 933, 935 (7th Cir. 1997). However, not
every harm caused by another inmate translates into
constitutional liability for the corrections officers responsible
for the prisoner's safety. Farmer, 511 U.S. at 834. In order
for a plaintiff to succeed on a claim for failure to protect, he
must show that he is incarcerated under conditions posing a
substantial risk of serious harm, and that the defendants acted
with "deliberate indifference" to that danger. Id.; Reed v.
McBride, 178 F.3d 849, 852 (7th Cir. 1999). A plaintiff also
must prove that prison officials were aware of a specific,
impending, and substantial threat to his safety, often by showing
that he complained to prison officials about a specific threat
to his safety. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir.
1996). In other words, Defendants had to know that there was a
substantial risk that those who attacked Plaintiff would do so,
yet failed to take any action. Sanville v. McCaughtry,
266 F.3d 724, 733-34 (7th Cir. 2001).
Based on the allegations in the complaint, the Court is unable
to dismiss Count 1 at this point in the litigation. See
28 U.S.C. § 1915A.
Unknown Defendant 1, a lieutenant from Internal Affairs,
investigated the incident between Plaintiff and Gray; based on
statements by Gray, he found that the sexual encounter had been
consensual. A disciplinary ticket was issued, but Plaintiff
claims he was not served with a copy of the ticket. At the
hearing, despite the medical evidence and Phillips's testimony
that the incident had been an assault, rather than a consensual
act, Unknown Defendant 2 found Plaintiff guilty and punished him with six months across the board, in addition to a
transfer to a maximum-security facility. Plaintiff filed a
grievance regarding this proceeding, which Bowen denied.
Plaintiff alleges that the hearing committee was not an impartial
tribunal, and that he was denied staff assistance in presenting
The instant case is a challenge to disciplinary proceedings
that resulted in the loss of good time credit as well as time in
When a state official violates the Constitution in
his treatment of a state prisoner, his illegal
conduct can, at least in theory, give rise to claims
for monetary or declaratory relief under § 1983 and
to claims for habeas corpus relief under § 2254.
Although these statutes provide distinct avenues for
relief, claims brought under § 1983 are not always
independent of claims that have been brought or could
be brought under § 2254. Proving official misconduct
for the purposes of § 1983 can often but not always
involve the same factual issues that would be
relevant in a potential claim under § 2254. This
intersection between claims under §§ 1983 and 2254
can sometimes implicate the fundamental principles
controlling federal jurisdiction generally, and
habeas corpus jurisdiction in particular. According
to these principles, the federal courts will not hear
a state prisoner's § 2254 claims against a state
official until the courts of that state have had the
opportunity to identify and remedy any official
misconduct. These principles of deference and
reticence that guide the federal courts similarly
prevent the district courts from considering any
issues that could be cognizable in a § 2254 claim
until the state prisoner has exhausted his state
court remedies. If claims under statutes besides §
2254 could be used as instruments to decide issues
that would be cognizable in a potential § 2254
action, the pursuit of such claims could promote the
evasion of the exhaustion requirement for § 2254.
Consequently, a prisoner cannot bring a § 1983 claim
that involves issues cognizable in habeas corpus
until he complies with the procedural prerequisites
for relief under § 2254. A decision on a § 1983 claim
brought in this posture would create situations in
which a federal court would make an initial, and
perhaps a preclusive, ruling on an issue that should
first be addressed by state courts.
But this limitation applies only if the preclusive
effect of a § 1983 judgment is certain. If resolution
of the issue in federal court would not necessarily
undermine the state court's ability to make an
independent determination of issues cognizable in
habeas corpus, then that issue is cognizable under §
1983, regardless of whether a state court has ruled
on that issue.
Clayton-EL v. Fisher, 96 F.3d 236, 242 (7th Cir. 1996),
citing Heck v. Humphrey, 512 U.S. 477, 487 n. 7 (1994). See generally Edwards v. Balisok, 520 U.S. 641,
117 S.Ct. 1584 (1997).
This determination [of which claims are cognizable
strictly under § 1983 and which raise issues
cognizable in habeas corpus] depends upon identifying
the injuries involved in each of [plaintiff's]
claims. As the Supreme Court has recently indicated,
the injury alleged in a claim and not the relief
sought in the claim determines whether a claim
implicates issues cognizable in habeas corpus. . . .
If the proof of any of those injuries involves the
proof of a fact that would also be essential to a
habeas corpus action, then the claim that depends
upon proof of that injury implicates habeas corpus.
Clayton-EL, 96 F.3d at 242 (citations omitted). See generally
Wilkinson v. Dotson, ___ U.S. ___, 125 S.Ct. 1242
, 1246-48 (2005).
In the instant case Plaintiff is challenging the lack of
written notice, the failure to provide him with staff assistance,
and the validity of the charges against him. Proof of such claims
could invalidate the disciplinary proceeding, which in turn would
invalidate Plaintiff's punishment of the revocation of six months
of good time credit. The proper method for challenging the
revocation of good time credit is habeas corpus, but only after
Plaintiff has exhausted his remedies through the Illinois state
courts. See, e.g., Heck, 512 U.S. at 480-81. The Illinois
courts have recognized mandamus as an appropriate remedy to
compel prison officials to award sentence credit to a prisoner.
Taylor v. Franzen, 93 Ill.App.3d 758, 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. Accordingly, Count 2 is dismissed from this action without
In these three counts, Plaintiff alleges various violations of
state law in connection with the claims discussed above in Counts
1 and 2. Because the Court has dismissed Plaintiff's federal claims regarding the disciplinary proceeding, the Court declines
to exercise supplemental jurisdiction over those related state
law claims. See 28 U.S.C. § 1367(c)(3). However, any state law
claims against Phillips directly related to the claims in Count 1
shall proceed at this time.
In the final paragraph of the complaint (¶ 23), Plaintiff
alleges that Defendants Wisely, Bowen, and Unknown Defendants
3-5*fn1 failed to provide him with psychiatric or other
medical evaluations at Graham and Centralia Correctional Centers.
Therefore, because Defendants did not follow their own
procedures, he was wrongly assigned to general population. This
ill-advised assignment thus led to the assault by Gray, and also
to the false disciplinary charges against him stemming from that
incident. Plaintiff claims that these inactions on the part of
these Defendants constitutes cruel and unusual punishment, in
violation of his rights under the Eighth Amendment.
By making allegations that Defendants merely failed to act
according to internal procedures, he presents, at best, a claim
of negligence. However, a defendant can never be held liable
under § 1983 for negligence. Daniels v. Williams, 474 U.S. 327,
328 (1986); Zarnes v. Rhodes, 64 F.3d 285, 290 (7th Cir.
1995). Accordingly, Plaintiff has not stated a viable claim under
the Eighth Amendment, and Count 6 is dismissed from this action
IT IS HEREBY ORDERED that COUNT 2 is DISMISSED from this
action without prejudice.
IT IS FURTHER ORDERED that the claims in COUNT 3, COUNT 4
and COUNT 5 against Bowen and Unknown Defendants 1-2 involving the
disciplinary proceeding are DISMISSED from this action without
IT IS FURTHER ORDERED that COUNT 6 is DISMISSED from this
action with prejudice.
IT IS FURTHER ORDERED that Defendants BOWEN, WISELY and
ALL UNKNOWN DEFENDANTS 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 PHILLIPS. 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 PHILLIPS 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 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
IT IS SO ORDERED.