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Roberts v. Firkus

May 16, 2006


The opinion of the court was delivered by: Harold A. Baker United States District Judge

Case Management Order #1 (Merit Review)

The plaintiff, currently incarcerated in Pinckneyville, filed this action pursuant to 42 U.S.C. Section 1983 regarding events that occurred during his incarceration in Logan Correctional Center.

The court is required by 28 U.S.C. §1915A to conduct a merit review of the Complaint, and through such process to identify cognizable claims and dismiss claims that are "frivolous, malicious, or fail[] to state a claim upon which relief may be granted . . . ." A merit review hearing was scheduled to aid the court in this review, but was cancelled as unnecessary. The Complaint and exhibits already clearly set out the claims.

The merit review standard is the same as the motion to dismiss standard. The plaintiff's pro se complaint is liberally construed, taking the allegations as true and drawing all reasonable inference in the plaintiff's favor. Haines v. Kerner, 404 U.S. 519 (1972). Dismissal is appropriate only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines, 404 U.S. at 521.


The events all occurred during the plaintiff's incarceration at Logan Correctional Center. Defendant Trutheart (a Logan correctional officer) and Defendant Firkus (the Warden at Logan) imposed permanent visiting restrictions against the plaintiff and his wife before a hearing was held on a disciplinary report charging them with sexual misconduct during a visit (plaintiff was accused of giving his wife a hickey). The plaintiff says this violated his constitutional rights and was in retaliation for prior complaints to the IDOC Director about the defendants' wrongful conduct. The plaintiff maintains that the permanent visiting restrictions were grossly disproportionate to the offense charged.

Defendant Trutheart, defendant John Doe (a shift commander) and defendant Firkus ordered the "plaintiff's detention in disciplinary/punitive segregation without a prehearing for exigent circumstances," where he was kept for six days before a hearing was held on the disciplinary ticket. The plaintiff maintains that this violated Illinois Administrative regulations. He also asserts that the IDOC's "two tier disciplinary system creates a liberty interest," presumably in avoiding disciplinary segregation before a hearing. He appears to maintain that the procedures used for designating him a "security threat," which justified his placement in segregation pending the disciplinary hearing, violated his constitutional rights because: 1) "the correctional officer issuing an Inmate Disciplinary Report (IDR), serves as prosecutor"; 2) "the shift commander, who validated the warrant/indictment with his signature . . . serves as the system's judge; 3) the "Adjustment Committee, which in this case Lisa Trutheart is a member, serves as the system's tryer [sic] of facts; and, 4) the IDR alleged a major infraction which implicated up to one year's loss of good time, which constituted a protected liberty interest. The plaintiff maintains that the defendants failed to follow mandatory administrative regulations by not providing him with a "speedy trial" on the disciplinary charge.

On a separate matter, Defendant Jennings (a Lieutenant at Logan) permanently deprived the plaintiff of confiscated personal property, and refused to provide the plaintiff the opportunity to send his property to his residence.

The plaintiff asks for the lifting of the permanent visiting restrictions with his wife, along with declaratory relief and damages.


I. Wrongful Confiscation of Personal Property

The intentional, unauthorized deprivation of personal property does not amount to a constitutional violation if there is an adequate state post-deprivation remedy available. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194 (1984); see also Parratt v. Taylor, 451 US 527 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986); Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999), cert. denied 529 U.S. 1134 (2000). The State of Illinois provides an adequate post-deprivation remedy in the Illinois Court of Claims. See Stewart v. McGinnis, 5 F.3d 1031 (7th Cir. 1993). Accordingly, this claim must be dismissed, along with defendant Jennings, who is implicated only in this claim.

II. Procedural Due Process: Placement in Segregation Pending Hearing on Disciplinary Charges

The plaintiff maintains that it was unconstitutional to place him in segregation for six days before he had a chance to defend himself against the charges in the disciplinary report, particularly since the persons making the decision to put him there were biased. However, the plaintiff has no constitutionally- protected liberty interest in avoiding segregation, absent segregation conditions that amount to an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472 (1995); Wagner v. Hanks, 128 F.3d 1173, 1176 (7th Cir. 1997); cf. Westerfer v. Snyder, 422 F.3d 570 (7th Cir. 2005)(assuming existence of liberty interest in avoiding transfer to supermax facility). No inference arises of an atypical and significant hardship under Sandin standards here. The plaintiff was only in disciplinary segregation for six days until the hearing. See Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995)(six-months of segregation did not automatically amount to an extreme term triggering due process protections). That the segregation violated Illinois Administrative regulations does not make out a Constitutional violation. Sandin, 515 U.S. at 483 (state-created "interests will be generally limited to freedom from restraint which . . ...

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