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Derrick Sutton, # B-34675 v. Larson

January 11, 2013

DERRICK SUTTON, # B-34675, PLAINTIFF,
v.
LARSON, GARY GERST, PADILLA, NICK NALLEY, LISA ASBURY, MINER, LT. ROBINSON, MILLER, IDOC HEALTH CARE EMPLOYER, DURBIN, AND STAFF, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, currently incarcerated at Lawrence Correctional Center ("Lawrence"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. His claims arose while he was confined in the Big Muddy River Correctional Center ("BMRCC"). Plaintiff is currently serving a seven year sentence for possession of a stolen vehicle. Plaintiff claims that Defendant Larson, a physician, was deliberately indifferent to a serious medical condition. He also alleges that he was wrongly placed in segregation and lost good conduct credits, he was retaliated against by staff, he received no response to his grievances, and over $200 worth of his property was lost or stolen.

In his complaint, Plaintiff states that after his transfer to BMRCC, Defendant Larson failed to refill his prescription medications (Doc. 1, p. 6). As a result, Plaintiff went without treatment for his chronic condition for an unspecified period of time (Doc. 1, p. 8). Plaintiff attaches 52 pages of exhibits; only from those documents can it be gleaned that Plaintiff suffers from diabetes and severe acid reflux (Doc. 1-1, pp. 45-46; 50-52).

The complaint contains no other specific factual allegations regarding the segregation, grievance, or property claims (Doc. 1, p. 6-9). As to the retaliation claim, Plaintiff states only that he was "continually placed/housed with difficult troubled cell-mates" (Doc. 1, p. 7). He does not identify which of the named Defendants was responsible for any of these unconstitutional actions.

Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable federal cause of action against Defendant Larson for deliberate indifference to a serious medical need (Count 1). However, the complaint fails to state a claim upon which relief may be granted for wrongful segregation (Count 2), retaliation (Count 3), failure to respond to grievances (Count 4), or loss/theft of property (Count 5). These claims, and the remaining Defendants, shall be dismissed.

In reference to the medical deliberate indifference claim (Count 1), Plaintiff mentions Defendant Gerst (a physician's assistant) (Doc. 1, p. 8). However, he never describes what personal involvement, if any, Defendant Gerst had in the failure to provide his prescription medications. In order to be held individually liable in a civil rights case, a defendant must be "personally responsible for the deprivation of a constitutional right." Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)(quoting Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)). Merely invoking the name of a potential defendant, as Plaintiff has done with Defendant Gerst, is not sufficient to state a claim against that individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). Accordingly, Defendant Gerst will be dismissed from this action without prejudice.

Plaintiff's claim that he was improperly punished with segregation and a revocation of good conduct credits (Count 2) is completely devoid of facts. He never describes any flaws in the disciplinary proceedings that might give rise to a due process claim, nor does he indicate the length or conditions of his segregation. See Wolff v. McDonnell, 418 U.S. 539 (1974); Marion v. Columbia Corr. Inst., 559 F.3d 693, 697-98 (7th Cir. 2009). He fails to connect any of the named Defendants to this claim. A plaintiff fails to state a claim upon which relief can be granted if his complaint does not contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Additionally, a court "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Plaintiff has run afoul of both of these principles, thus Count 2 shall be dismissed without prejudice.

Further, Plaintiff should take note that the proper method to seek restoration of good conduct credits in federal court is through a habeas action pursuant to 28 U.S.C. § 2254. However, a federal habeas petition will only be considered after Plaintiff has first exhausted his remedies through the Illinois state courts. See, e.g., Heck v. Humphrey, 512 U.S. 477, 480-81 (1994). The Illinois courts have recognized mandamus as an appropriate remedy to compel prison officials to award sentence credit to a prisoner. See Turner-El v. West, 811 N.E.2d 728, 733 (Ill. App. 2004) (citing Taylor v. Franzen, 417 N.E.2d 242, 247, aff'd on reh'g, 420 N.E.2d 1203 (Ill.App. 1981)). The State of Illinois must first be afforded an opportunity, in a mandamus action pursuant to 735 Illinois Compiled Statutes 5/14-101 et seq., to consider the merits of Plaintiff's claim.

Plaintiff's retaliation claim (Count 3) is similarly lacking in factual allegations. No responsible Defendants are identified, nor does Plaintiff mention what protected activity on his part prompted the retaliatory acts. See Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). This claim shall also be dismissed without prejudice.

Count 4, regarding prison officials' failure to respond to Plaintiff's grievances, suffers from the same flaws in that no Defendants are named and Plaintiff's conclusory statements are unsupported by factual allegations. However, the dismissal of this claim shall be with prejudice. Even if Plaintiff had included more factual information, prison officials' failure to follow their own grievance procedure will not give rise to a constitutional claim. Prison grievance procedures are not constitutionally mandated and thus do not implicate the Due Process Clause per se. As such, the alleged mishandling of grievances "by persons who otherwise did not cause or participate in the underlying conduct states no claim." Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). See also Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th Cir. 2008); George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).

Count 5, regarding the loss or theft of Plaintiff's property, will also not amount to a constitutional claim. Plaintiff has the right, under the Fourteenth Amendment, to be free from deprivations of his property by state actors without due process of law. However, to state a claim under the due process clause of the Fourteenth Amendment, Plaintiff must establish a deprivation of liberty or property without due process of law; if the state provides an adequate remedy, Plaintiff has no civil rights claim. Hudson v. Palmer, 468 U.S. 517, 530-36 (1984) (availability of damages remedy in state claims court is an adequate, post-deprivation remedy). The Seventh Circuit has found that Illinois provides an adequate post-deprivation remedy in an action for damages in the Illinois Court of Claims. Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999); Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir. 1993); 705 ILL. COMP. STAT. 505/8 (1995). Therefore, Count 5 shall be dismissed without prejudice to Plaintiff bringing his claim in state court, should he wish to do so.

Finally, Defendants Padilla, Nalley, Asbury, Miner, Robinson, Mr. Miller,*fn1 Ms. Miller, Durbin, Wexford Health Care (identified on the docket sheet as "IDOC Health Care Employer"), and Debbie Isaacs*fn2 shall be dismissed from this action without prejudice. Plaintiff lists these parties as Defendants (Doc. 1, pp. 2-4), but fails to mention them elsewhere in the body of the complaint in connection with any of his claims. Plaintiffs are required to associate specific defendants with specific claims, so that defendants are put on notice of the claims brought against them and so they can properly answer the complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); FED. R. CIV. P. 8(a)(2). Where a plaintiff has not included a defendant in his statement of the claim, the defendant cannot be said to be adequately put on notice of which claims in the complaint, if any, are directed against him. And, as noted above, merely invoking the name of a potential defendant is not sufficient to state a claim against that party. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998).

Pending Motion

Plaintiff's motion for appointment of counsel (Doc. 4) shall be referred to United States Magistrate Judge ...


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