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Moss v. Westerman

July 24, 2006

CARL MOSS, INMATE #B18364, PLAINTIFF,
v.
DARRELL N. WESTERMAN, ANDREW N. WILSON, MICHAEL R. LOCKE, AND EUGENE MCADORY, DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

Currently pending before the Court is Plaintiff's motion for reconsideration of the Court's order dismissing the action (Doc. 20). Technically, a "Motion to Reconsider" does not exist under the Federal Rules of Civil Procedure. The Seventh Circuit has held, however, that a motion challenging the merits of a district court order will automatically be considered as having been filed pursuant to Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. See, e.g., Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994); United States v. Deutsch, 981 F.2d 299, 300 (7th Cir. 1992). As noted in Deutsch, "in cases where it is unclear whether a motion challenging a judgment on the merits is made under Rule 59(e) or Rule 60(b)," the date of service will determine how the motion will be treated. Thus, "'if the motion is served within ten days of the rendition of judgment, the motion falls under Rule 59(e); if it is served after that time, it falls under Rule 60(b).'" Id. (citations omitted).

Judgment was entered in this action on June 20, 2006, and the instant motion was filed on July 5, 2006, outside of the 10-day window. However, Plaintiff avers that he placed the motion in the institutional mail system on June 30, 2006. Giving Plaintiff the benefit of the doubt as to time for mailing, the Court finds that Plaintiff did file the motion within the 10-day period. See FED.R.CIV.P. 59(e). Therefore, under Deutsch, the Court will construe the motion as a motion to alter or amend judgment, filed pursuant to Rule 59(e), which may only be granted if a movant shows there was mistake of law or fact or presents newly discovered evidence that could not have been discovered previously. Matter of Prince, 85 F.3d 314 (7th Cir. 1996), reh'g and suggestion for reh'g en banc denied, cert. denied 117 S.Ct. 608; Deutsch v. Burlington Northern R. Co., 983 F.2d 741 (7th Cir. 1993). As explained below, the motion to reconsider is GRANTED.

DISCIPLINARY HEARING AND PROCEDURES

Plaintiff spends a great deal of space arguing that the rule he was found guilty of violating was impossible to interpret because of its confusing language and that he was, in fact, not guilty of violating the rule. He further argues that prison officials did not follow a number of known procedures in putting him in segregation and in his subsequent disciplinary hearing. Among these violated procedures were that the adjustment committee failed to call witnesses, they failed to properly evaluate the evidence, that the citing officer lied in his disciplinary report, and that Plaintiff was taken to segregation right after the alleged offense occurred instead of later, as is the usual procedure at Menard. All of these alleged procedural irregularities state, at best, a claim of the denial of due process. None of them are constitutional violations in and of themselves.

As explained in the Court's order, unless a plaintiff can show he was deprived of a liberty interest, the Court will not go on to evaluate the procedures used to find him guilty. That means that the Court will not evaluate the true "guilt" or "innocence" of a prisoner in a prison disciplinary hearing, or any irregularities in placing him in segregation, or in the course of the disciplinary hearing, unless that prisoner has first shown the Court that he was deprived of a liberty interest. See Zinermon v. Burch, 494 U.S. 113, 125 (1990). After Plaintiff was found guilty of the charges, he was disciplined with time in segregation, demotion to "C" grade, and loss of commissary privileges. As stated in the Court's order, none of these deprivations state a liberty interest under the Due Process clause. Without deprivation of a liberty interest, Plaintiff has not stated a due process claim.*fn1 Accordingly, the Court's determination that Plaintiff has not stated a due process claim, which includes any review of his guilt or innocence of the charges against him and all procedures used prior to and during the disciplinary hearing, was correct as a matter of law. As such, this claim was properly dismissed from the action pursuant to 28 U.S.C. § 1915A.

Upon reconsideration, the Court also finds that Plaintiff attempted to state a due process claim regarding the ineffective grievance procedure at Menard. However, "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, Plaintiff has also failed to state a claim under these facts.

RETALIATION

However, Plaintiff has stated a claim worthy of reconsideration under the rule that he was retaliated against by Defendant Westerman for filing grievances. In its initial review of the complaint, the Court failed to note this claim, but upon reconsideration the Court finds that Plaintiff has made sufficient factual allegations to sustain a claim of retaliation past threshold review pursuant to 28 U.S.C. § 1915A. Plaintiff stated that after he was stopped by Defendant Westerman, Plaintiff stated, "as you wish sir, Lieutenant Westerman." This angered Defendant Westerman. Later, as Plaintiff was being processed into segregation, Defendant Westerman stated, "this will teach him to write a grievance about me." Plaintiff states that Defendant Westerman retaliated against him by fabricating facts described in the disciplinary report and citing Plaintiff for insolence, when Plaintiff, throughout the episode leading to charges, was not insolent.

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. 2002). Naming the suit and the act of retaliation is all that is necessary to state a claim of improper retaliation. Id.

Accordingly,

IT IS HEREBY ORDERED that Plaintiff's motion to reconsider the Court's order (Doc. 20) is GRANTED.

IT IS FURTHER ORDERED that the order dismissing this ...


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