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Rivera v. Hardy

United States District Court, N.D. Illinois

March 23, 2015

ORLANDO RIVERA (B-45361), Plaintiff,
v.
MARCUS HARDY, et al., Defendants.

OPINION AND ORDER

CHARLES R. NORGLE, District Judge.

Defendants' "Motion to Dismiss Plaintiff's Amended Complaint" (Dkt. No. 39) is granted in part and denied in part for the reasons stated herein. Plaintiff may proceed with the following claims: (1) a claim that Defendants McClelland, Winters, Jackson, and Bishop violated his right to procedural due process in regard to his disciplinary proceedings; (2) an excessive force claim against Defendant Winters. All other claims, and all other Defendants, are dismissed.

BACKGROUND

Plaintiff Orlando Rivera ("Plaintiff"), an inmate at Illinois River Correctional Center, brings this pro se complaint alleging denial of his due process rights, retaliation, and excessive force as a result of events that occurred at Stateville Correctional Center ("Stateville") in May 2012. Plaintiff filed his amended complaint on November 21, 2014, naming as Defendants Warden Marcus Hardy, grievance officer Anna McBee, Correctional Officer Niccoelle Jackson, Lt. Yvonne Bishop, Correctional Officer Raviel Winters, and Sgt. John McClelland. The following facts are taken from the amended complaint, viewed in the light most favorable to Plaintiff.

Plaintiff alleges that on May 2, 2012, he was returning to his cell from the chow hall when he was subject to a shakedown in which a banana was seized. It is not clear what officer performed the search, but upon arriving at the cell house, Plaintiff alleges that Correctional Officer Winters had difficulty locking the cell door and started yelling at the inmates that they should lock themselves up. After another inmate talked back to Winters, Winters allegedly became angry and threatened the inmates, adding, "in fact, if any of you ask me for anything, the answer is no." Plaintiff alleges that he told Winters, "I'll ask another officer if I need anything." Winters then became aggressive toward Plaintiff, and he and Plaintiff got into a verbal altercation, during which Plaintiff claims Winters threatened him, and Plaintiff replied with, "You won't do shit to me." Plaintiff contends that Winters pushed him "very hard and aggressively in the back into his cell." Sgt. McClelland then stepped between Winters and Plaintiff, ending the altercation.

Plaintiff subsequently was served with disciplinary charges by Correctional Officer Jackson. The charges were prepared by McClelland and Winters. Plaintiff was charged with assault, intimidation, insolence, possession of contraband, and disobeying a direct order. He pleaded not guilty. An adjustment committee, consisting of Jackson and Lt. Bishop, found Plaintiff guilty of all charges except the contraband charge. Plaintiff alleges that as a result of these charges he spent three months in segregation in a filthy, roach- and rodent-infested cell.

Plaintiff contends that prior to the hearing, he informed Jackson that he wanted to call certain inmates as witnesses. Jackson told him she would investigate those witnesses, but it did not make sense to question thirty inmates about the same thing. Later, at the hearing, Plaintiff tried to present witness affidavits, but the committee would not accept them.

Plaintiff filed a grievance on May 13, 2012, contending that he was wrongly found guilty of the disciplinary charges. The grievance was denied by grievance officer Anna McBee, a decision upheld by Warden Marcus Hardy. Plaintiff appealed to the Administrative Review Board ("ARB"), which found that the disciplinary report should be expunged for noncompliance with certain regulations at Plaintiff's hearing.

Plaintiff seeks to recover from Winters for excessive force. He alleges that Winters and McClelland prepared a false disciplinary report in retaliation for Plaintiff speaking up when Winters was using threatening and derogatory language toward the inmates. He also contends that the disciplinary proceedings, and McBee's and Hardy's response to his grievance, violated his right to due process. Finally, Plaintiff alleges, in a conclusory fashion, that all Defendants conspired to violate his constitutional rights.

LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, a complaint must set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); Smith v. Medical Benefit Adm'rs Grp., Inc., 639 F.3d 277, 281 (7th Cir. 2011). Rule 8 does not require detailed factual allegations. Fed.R.Civ.P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The allegations, however, must be enough to raise a plausible right to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569 n. 14 (2007). When reviewing a motion to dismiss, the court accepts all well-pleaded factual allegations as true and views them in the light most favorable to the non-moving party. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

ANALYSIS

A. Excessive Force

Plaintiff alleges that following their verbal altercation, Correctional Officer Winters shoved him "very hard and aggressively in the back into his cell." Sgt. McClelland then stepped between the two men and ended the altercation. The intentional use of excessive force by prison guards without penological justification violates the Eighth Amendment. Hudson v. McMillan, 503 U.S. 1, 6-7 (1992). The key inquiry is whether the "force was applied ...


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