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Holmes v. Hale

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


January 10, 2007

GREIGORY HOLMES, INMATE #K04785, PLAINTIFF,
v.
C/O LARRY HALE, DEFENDANTS.

The opinion of the court was delivered by: Stiehl, 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.

IN FORMA PAUPERIS

This action is before the Court on Plaintiff's motion to proceed in forma pauperis (Doc. 2). The Court finds that Plaintiff is indigent and unable to pay the full filing fee in advance; therefore, leave to proceed in forma pauperis is GRANTED. Pursuant to 28 U.S.C. § 1915(b), IT IS HEREBY ORDERED that Plaintiff shall pay the $350.00 filing fee applicable to this civil action as follows:

1. Plaintiff shall pay an initial partial filing fee of $10.05 . See 28 U.S.C. § 1915(b)(1). The agency having custody of Plaintiff is DIRECTED to transmit this amount from Plaintiff's prison trust fund account to the Clerk of Court upon receipt of this Memorandum and Order.

2. Plaintiff shall make monthly payments of 20% of the preceding month's income credited to Plaintiff's prison trust fund account until the filing fee is paid in full.

3. The agency having custody of Plaintiff shall forward payments from Plaintiff's account to the Clerk of this Court each time the amount in the account exceeds $10 until the filing fee is paid. Payments shall be mailed to: Clerk of the Court, United States District Court for the Southern District of Illinois, P.O. Box 249, East St. Louis, Illinois 62202.

IT IS FURTHER ORDERED that if judgment is rendered against Plaintiff, and the judgment includes the payment of costs under Section 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).

The Clerk is DIRECTED to mail a copy of this Memorandum and Order to Plaintiff and to the Trust Fund Officer at the Menard Correctional Center upon entry of this Memorandum and Order.

THRESHOLD REVIEW

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 governmental entity.

(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--

(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; this action is legally frivolous and thus subject to summary dismissal.

Factual Allegations

Plaintiff states that Defendant Holmes wrote two false disciplinary reports against him, and that these two reports constituted harassment. First, on March 5, 2004, Plaintiff was charged with unauthorized movement and disobeying a direct order for failing to properly pair up with another inmate for the walk from the cafeteria to the cellhouse, and for returning in a line with the wrong gallery. In a hearing held on March 9, 2004, Plaintiff was found guilty of the charges, and disciplined with three months segregation, a three-month demotion to c-grade, a three-month loss of commissary privileges, and a one-month loss of yard time. At the hearing, Plaintiff stated that he was with the wrong gallery, but that he was properly paired with another inmate.

Second, on July 19, 2004, Plaintiff was written a disciplinary report charging him with disobeying a direct order and unauthorized movement for again failing to pair up with another inmate in line from the cafeteria to the cellhouse. A hearing was held on the ticket on July 22, 2004. Plaintiff pleaded not guilty to both charges, but was found guilty and disciplined with two months segregation, a two-month demotion to c-grade, and a two-month commissary restriction. Plaintiff submitted with his complaint a letter from the Administrative Review Board indicating that the July 19, 2004, disciplinary report was expunged for failure to comply with department rules.

Legal Standards

Plaintiff's allegations most closely resemble a claim of denial of due process, in that he was found guilty of violations he claims he did not commit. 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). An inmate has a due process liberty interest in being in the general prison population only if the conditions of his or her confinement impose "atypical and significant hardship...in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). The Seventh Circuit Court of Appeals has adopted an extremely stringent interpretation of Sandin. In this Circuit, a prisoner in disciplinary segregation at a state prison has a liberty interest in remaining in the general prison population only if the conditions under which he or she is confined are substantially more restrictive than administrative segregation at the most secure prison in that state. Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997). If the inmate is housed at the most restrictive prison in the state, he or she must show that disciplinary segregation there is substantially more restrictive than administrative segregation at that prison. Id. In the view of the Seventh Circuit Court of Appeals, after Sandin "the right to litigate disciplinary confinements has become vanishingly small." Id. Indeed, "when the entire sanction is confinement in disciplinary segregation for a period that does not exceed the remaining term of the prisoner's incarceration, it is difficult to see how after Sandin it can be made the basis of a suit complaining about a deprivation of liberty." Id.

In the case currently before the Court, Plaintiff was sent to disciplinary segregation first for three months, then for two months. Nothing in the complaint or exhibits suggests that the conditions that he had to endure while in disciplinary segregation were substantially more restrictive than administrative segregation in the most secure prison in the State of Illinois. Therefore, Plaintiff's due process claim is without merit.

Plaintiff also claims that he was demoted to c-grade, denied commissary privileges, and denied yard access. However, these allegations also do not present viable constitutional claims. See, e.g., Thomas v. Ramos, 130 F.3d 754, 762 n.8 (7th Cir. 1997) (and cases cited therein) (no protected liberty interest in demotion to C-grade status and loss of commissary privileges).

In summary, Plaintiff's complaint does not survive review under § 1915A. Accordingly, this action is DISMISSED with prejudice. Plaintiff is advised that the dismissal of this action will count as one of his three allotted "strikes" under the provisions of 28 U.S.C. § 1915(g).

IT IS SO ORDERED.

WILLIAM D. STIEHL DISTRICT JUDGE

20070110

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