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Durwyn Talley, # B52081 v. Warden Hodge

August 10, 2012

DURWYN TALLEY, # B52081
PLAINTIFF,
v.
WARDEN HODGE, ET AL., DEFENDANTS.



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

ORDER

Plaintiff Durwyn Talley, an inmate currently incarcerated at Western Correctional Center, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. Talley challenges the conditions he experienced while confined in the segregation unit at Lawrence Correctional Center between May and July, 2011. He alleges that he was physically assaulted while restrained in handcuffs; that various adverse actions were taken in order to retaliate for his protected speech (filing grievances regarding prison conditions); that he did not receive medical treatment for a variety of medical conditions, including severe gastrointestinal reflux disease; and that the length of his segregated confinement was extended following a procedurally defective prison disciplinary proceeding. Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. The Court applies the same standard under § 1915A as when deciding a motion filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Accepting Talley's allegations as true, the Court finds that he has articulated three plausible federal causes of action against defendant correctional officers Knop and Kessel:

Count 1: that Kessel and Knop used physical force sadistically and maliciously for the purpose of causing harm on or about May 7 and/or July 6, 2011, in violation of the Eighth Amendment's proscription against cruel and unusual punishment;

Count 2: that after Talley engaged in protected conduct by writing grievances about the conditions of prison confinement, Kessel and Knop took numerous retaliatory actions in violation of the First Amendment by:

(a) physically assaulting Talley,

(b) threatening to inflict more harm,

(c) writing disciplinary tickets,

(d) intimidating a witness,

(e) preventing Talley from attending and presenting evidence at a disciplinary hearing,

(f) changing Tally's housing assignment to a cell in "B" wing, and/or

(g) stealing some of Talley's personal property and legal work;

Count 3: that Kessel and Knop deprived Talley of medical care needed to treat serious physical ailments in violation of the Eighth Amendment's proscription against cruel and unusual punishment.

Talley may also be attempting to allege a claim based on the Fourteenth Amendment's due process clause. In order to state a procedural due process claim, Talley must allege facts suggesting that he was deprived of a liberty interest. See Marion v. Radtke, 641 F.3d 874, 876 (7th Cir. 2011). While Talley alleges that his segregated confinement was extended as after procedurally defective proceedings, this allegation does not plausibly suggest that Talley suffered an "atypical and significant hardship" in relation to the ordinary incidents of prison life. Sandin v. Conner, 515 U.S. 472, 486 (1995)(30 days in segregation); Hoskins v. Lenear, 395 F.3d 602, 612 (7th Cir. 2005)(60 days); Lekas v. Briley, 405 F.3d 602, 612 (7th Cir. 2005)(90 days). The Court finds that the allegations in Talley's Amended Complaint do not support a plausible due process claim.

The Court has evaluated allegations levied against Warden Hodge, Lt. Stanford, and Lt. Goines and finds no plausible claims of Constitutional deprivation against these defendants. Talley's allegations suggest that Lt. Stanford heard Talley express concerns about physical abuse and failed to propose an effective resolution. Talley alleges that Lt. Goines refused to listen when Talley tried to express concerns and then failed to recognize a conflict of interest when he chose Knop as the officer who would escort Talley to a disciplinary hearing. He alleges that Warden Hodge upheld a decision resolving a grievance about a decision to impose disciplinary sanctions. To be liable, these defendants must have been personally involved in a Constitutional deprivation, meaning that they must have known about the deprivation and facilitated, approved, condoned or turned "a blind eye." Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). The doctrine of respondeat superior is not applicable to ยง ...


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