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Pierre James v. Warden Rednour

August 23, 2012

PIERRE JAMES, PLAINTIFF,
v.
WARDEN REDNOUR, MAJOR DURHAM, ADMINISTRATIVE REVIEW BOARD, GRIEVANCE OFFICER COWAN, LIEUTENANT LEIFER, LIEUTENANT ASPEY, SERGEANT K. CARTWRIGHT, C/O CARD, C/O JOEL HEPP, C/O MOTT, JOHN DOES 1-5 AND SERGEANT BONHART, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, currently incarcerated at Stateville Correctional Center, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983.

Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. This task is made more difficult by the excessive detail and verbose language found throughout the complaint.

On August 10, 2010, Plaintiff was incarcerated at Menard Correctional Center. Plaintiff claims that, as other inmates were creating a disturbance to protest the cancellation of yard, Plaintiff counseled them that they should instead stage a peaceful protest by going on a hunger strike. Defendant Leifer came to his cell and, despite the fact that Plaintiff had not done anything wrong, told Plaintiff he was going to segregation. Leifer acted in retaliation for Plaintiff's exercise of his First Amendment rights. Defendant Bonhart then came to his cell and refused Plaintiff's request to speak again with Lieutenant Leifer. Major Durham came to his cell and observed that Plaintiff and his cellmate were not cuffing up, as they had been told to do. Major Durham called out the Tactical Team. The Tactical Team used excessive force on Plaintiff while extracting him from his cell and taking him to the segregation unit. Tactical Team officers then prevented Plaintiff from getting immediate medical attention by assuring a nurse that he was not hurt. He was seen a few days later for his injuries, which consisted of cuts, lumps on his face, and bruises. A false disciplinary report was written, and the Adjustment Committee refused to call witnesses, interview witnesses or view the cell extraction tape. Plaintiff claims that all of the defendants acted in conspiracy with each other to cover up the fact that he had been beaten by the Tactical Team. Plaintiff also alleges that Warden Rednour, the Administrative Review Board and Grievance Officer Cowan refused to respond to grievances he filed.

Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated only one colorable federal claim, that is, a claim against the members of the Tactical Team for the use of excessive force in violation of the Eighth Amendment on August 10, 2010. Plaintiff identified the members of the Tactical Team as Defendants Sergeant Cartwright, C/O Card and John Does 1 through 5.

Plaintiff has not stated a claim for deliberate indifference to his serious medical needs against the Tactical Team members because he alleges only a few days' delay in being seen by a nurse, and his alleged injuries (cuts that did not require stitches, bruises and lumps) do not rise to the level of an objectively serious medical need. See, Pinkston v. Madry, 440 F.3d 879, 891 (7th Cir. 2006).

Plaintiff has not stated an actionable claim against Lieutenant Leifer or C/O Bonhart. Plaintiff claims that Leifer ordered him to segregation in retaliation for his exercise of his First Amendment right to organize a "peaceful protest." "[A]n act in retaliation for the exercise of a constitutionally protected right is actionable under Section 1983 even if the act, when taken for different reasons, would have been proper." Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir. 1987); see also Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009). However, in order to state a claim for retaliation, Plaintiff must first allege that he engaged in activity protected by the Constitution. The First Amendment does not guarantee a prison inmate the right to organize other inmates in a hunger strike to protest the denial of yard privileges. An inmate's speech is protected by the First Amendment only where the inmate engaged in speech in a manner consistent with the legitimate penological interests. Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009), applying the standard set forth in Turner v. Safley, 107 S. Ct. 2254 (1987). Organizing other inmates to engage in a hunger strike to protest the denial of yard privileges is not consistent with legitimate penological interests and is not protected speech. See, Watkins v. Kasper, 599 F.3d 791, 797 (7th Cir. 2010), and cases cited therein. Therefore, Defendants LIEUTENANT LEIFER and C/O BONHART will be dismissed with prejudice.

The only allegation against Major Durham is that he failed to intervene after being informed that Leifer was retaliating against Plaintiff. Section 1983 creates a cause of action based on personal liability and predicated upon fault. Liability does not lie unless the particular individual defendant caused or participated in the constitutional deprivation. See Kuhn v. Goodlow, 678 F.3d 552, 555-56 (7th Cir. 2012). In any event, since Leifer's actions did not violate the Constitution, Major Durham could certainly not be liable for failing to intervene. While it was Major Durham who allegedly called out the Tactical Team, plaintiff has not alleged that he participated in or ordered the use of excessive force by the Team members. Defendant MAJOR DURHAM will be dismissed with prejudice.

Plaintiff's allegations regarding a false disciplinary report and lack of due process in the Adjustment Committee's handling of the report do not state an actionable claim against anyone. Plaintiff does not specify who wrote the false disciplinary report, but he names Defendant Aspey as the head of the Adjustment Committee. Plaintiff evidently received six months in segregation as a sanction after being found guilty on the disciplinary report. See, Doc. 1, pp. 36-37. There is no indication that Plaintiff lost any good conduct credit as a consequence of the disciplinary report.

When a plaintiff brings an action under Section 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). As Plaintiff did not lose any good conduct credit, the overall length of his confinement is not affected. 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). 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.

This Court understands Sandin and Wagneras holding that even a prisoner's arbitrary confinement in disciplinary segregation, administrative segregation, or protective custody does not implicate any liberty interest -- under either the Due Process Clause or state law -- so long as the confinement itself does not constitute an "atypical, significant deprivation." A particular confinement is "atypical [and] significant" only if the conditions under which the inmate is confined are substantially more restrictive than administrative segregation at the most secure prison in that state. Wagner, 128 F.3d at 1175. Subsequent opinions by the Seventh Circuit have explained that where the duration of confinement in segregation is relatively short, no liberty interest will be implicated. See Marion v. Columbia Corr. Inst., 559 F.3d 693, 697 n.2 (7th Cir. 2009) (collecting cases).

Nothing in the complaint or exhibits suggests that the conditions that Plaintiff had to endure because of being found guilty of the allegedly false disciplinary report were substantially more restrictive than administrative segregation in the most secure prison in the State of Illinois. Nor does the duration of six months in segregation trigger due process concerns. Accordingly, Plaintiff has failed to allege facts indicating that he was deprived of a liberty interest, either under the Due Process Clause or created by the State. Therefore, he had not stated a claim against Defendant Aspey, or anyone else, arising out of the disciplinary report and Adjustment Committee hearing. Defendant ASPEY will be dismissed with prejudice.

No actionable claim is stated by Plaintiff's allegations that his grievances have been ignored by Warden Rednour, Grievance Officer Cowan and the Administrative Review Board. A prison inmate has no constitutional right to have his grievance addressed. See, Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). "Ruling against a prisoner on an administrative complaint does not cause or contribute to the [constitutional] violation." George v. Smith, 507 F.3d 605, 609-610 (7th Cir. 2007). Further, the Administrative Review Board is not a "person" which can be sued under Section 1983. The Supreme Court has held that "neither a State nor its officials acting in their official capacities are 'persons' under § 1983." Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989). See also Billman v. Indiana Department of Corrections, 56 F.3d 785, 788 (7th Cir. 1995) (state Department of Corrections is immune from suit by virtue of Eleventh Amendment). Defendants REDNOUR, COWAN and ADMINISTRATIVE REVIEW BOARD will be dismissed with prejudice.

Plaintiff alleges that all Defendants conspired together to cover up the fact that the Tactical Team beat him. This allegation does not state an actionable claim. Conspiracy is not an independent basis of liability under Section 1983. See Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008); Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000). Plaintiff cannot maintain his conspiracy claim unless he alleges that Defendants conspired to deny him his constitutional rights. Hill v. Shobe, 93 F.3d 418, 422 (7th Cir. 1996). Plaintiff is not alleging that Defendants conspired to subject him to excessive force; he is alleging that some Defendants conspired to cover up the use of excessive force by other persons. Covering up the use of excessive force by other persons does not violate the Plaintiff's constitutional rights. The Constitution does not obligate prison employees to refrain from concealing bad acts committed by other persons. The conspiracy claim is ...


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