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Birdo v. Prisoner Review Board

United States District Court, S.D. Illinois

May 1, 2015

KEVIN A. BIRDO, #B28737, Plaintiff,



Plaintiff Kevin Birdo is currently incarcerated at the Menard Correctional Center in Menard, Illinois. (Doc. 1 at 1.) Proceeding pro se, Birdo has filed a civil rights action pursuant to 42 U.S.C. § 1983 against two corrections counselors and the warden of Menard, as well as a number of other prison officials throughout Illinois. (Id. ) Birdo claims that officials violated his due process rights and engaged in retaliation against him for his previous alleged assault against a corrections officer at Menard. (Id. at 5.) He seeks monetary damages and injunctive relief, and he has also requested "emergency" relief in the narrative of his complaint. (Id. )

This matter is now before the Court for an expedited review of Birdo's complaint pursuant to 28 U.S.C. § 1915A, as well as consideration of his emergency request for relief. Under 28 U.S.C. § 1915A, the Court shall review a "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a government entity." During this preliminary review under 28 U.S.C. § 1915A, the court "shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, " if the complaint "is frivolous, malicious, or fails to state a claim on which relief may be granted" or if it "seeks monetary relief from a defendant who is immune from such relief."

The Complaint

On January 12, 2000, Birdo was accused of assaulting Bryan Wagner, a corrections officer at Menard, while boarding a Menard bus headed for Logan Correctional Center. (Doc. 1 at 6.) In May 2003, Birdo was convicted for aggravated battery against Wagner and sentenced to seven and a half years. (Id. ) One of the corrections officers who testified against Birdo in the battery case was an officer named Cowan, who also works at Menard. (Id. ) According to Birdo, Cowan held a grudge related to the assault-Cowan came across Birdo in the Will County Courthouse in August 2013 and told Birdo that he was "still waiting on [Birdo] to come to Menard, " a statement that Birdo interpreted as a "subtle threat." (Id. )

In April 2014, Birdo was told that he was transferring from Pontiac Correctional Center to Menard. (Id. at 7.) He expressed concerns about the transfer to an internal affairs officer at Pontiac, but the transfer still went through-Birdo moved to Menard in late April 2014. (Id. )

Since arriving at Menard, Birdo claims that he has suffered from various instances of retaliation "because of [his] alleged assault of former or current Corrections Officer Bryan Wagner." (Id. at 8.) Due to the Wagner assault, Birdo claims that officers have denied him access to meals, denied him access to the law library, broken his television, withheld his legal mail concerning cases in the Northern District of Illinois and Will County, and housed him with a cellmate who has a "perverse sexual nature" and a "criminal sexual history." (Id. at 5, 7-8.) He also claims that his counselors at Menard (S. Hill and Christopher Mathis) have failed to process his transfer request and his request for restoration of good time credits, also "because of retaliation against [Birdo] for allegedly assaulting Bryan Wagner." (Id. at 11-13.)

Birdo claims that he has written grievances about most or all of this conduct but they have come up missing. (Id. at 4.) He also claims that he has written letters to various Illinois officials, including the Director of the Illinois Department of Corrections, the Transfer Coordinator, and the Prison Review Board, all to no avail. (Id. at 8.) Unsatisfied with the prison's response, he filed the instant § 1983 complaint on April 24, 2015. (Id. at 1.)


Birdo's complaint focuses on retaliation by several officials, so the Court will begin with those claims. Birdo alleges that Mathis and Hill retaliated against him for the Wagner assault by failing to process his transfer request (Count 1) and his application for discretionary credit restoration (Count 2), that unknown defendants retaliated against him for the Wagner assault by failing to provide him with safe housing (Count 3), and that unknown defendants retaliated against him for the Wagner assault by failing to provide him with access to his mail (Count 4). To put forth a retaliation claim, a prisoner must show that "he engaged in activity protected by the First Amendment, " that "he suffered a deprivation that would likely deter First Amendment activity in the future, " and that the "First Amendment activity was at least a motivating factor in the Defendants' decision to take the retaliatory action.'" Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012) ( quoting Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008)).

Here, all of Birdo's retaliation claims fail at the first step, as Birdo has not alleged that he engaged in activity safeguarded by the First Amendment. Birdo's complaint states that the retaliation occurred because of his assault on Wagner: he says that officers responsible for his housing issues "retaliate[d] against [him] because of [his] alleged assault" of Wagner, that Mathis and Hill have not processed his applications "because of retaliation against [him] for allegedly assaulting Bryan Wagner, " and that he "believe[s]" the prison warden is blocking his mail "to retaliate... about the alleged assault of Bryan Wagner." (Doc. 1 at 8, 11, 13, 14.) Birdo is right that prisoners have limited free speech rights, and an associated right to be free of retaliation for exercising those rights. Smith v. Peters, 631 F.3d 418, 421 (7th Cir. 2011). And a prisoner's right to free speech encompasses several different types of "protected activities, " including filing a grievance and bringing a lawsuit. Turley v. Rednour, 555 F.Appx. 606, 609 (7th Cir. 2014). That said, "protected activity" does not include assault or battery against an officer. See, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993) ("[A] physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment."); United States v. Soderna, 82 F.3d 1370, 1375 (7th Cir. 1996) (physical blockade was not protected conduct); McElroy v. Unknown Parties, No. No. 14-cv-01020, 2014 WL 5396172, at *2 (S.D. Ill. Oct. 21, 2014) (dismissing claim because "restraining a guard" and "physical assault" are not activities "protected under the First Amendment"). Because Birdo alleges that the officials' conduct was motivated by his assault of Wagner, Counts 1 through 4 must be dismissed without prejudice. If Birdo has engaged in other protected activity that he believes may have motivated the conduct discussed above, he has 35 days from the date of this order to allege as much in an amended complaint, or he will face dismissal of these claims with prejudice.

Birdo also claims that Mathis and Hill failed to process his application for a transfer to another prison, thereby violating his due process rights (Count 5). To state a due process claim, a prisoner must first "allege that he has a cognizable liberty interest under the Fourteenth Amendment." O'Gorman v. City of Chicago, 777 F.3d 885, 891 (7th Cir. 2015). In the transfer context, prisoners have a liberty interest when they are transferred to a supermax-style facility whose conditions would impose "atypical and significant hardship in relation to the ordinary incidents of prison life." Wilkinson v. Austin, 545 U.S. 209, 223 (2005). In those limited circumstances, inmates are "entitled to informal, nonadversarial due process" prior to the transfer. Westefer v. Neal, 682 F.3d 679, 684 (7th Cir. 2012). Outside of these circumstances, however, prisoners do not have a liberty interest in a "transfer from one institution to another within the state prison system." Meachum v. Fano, 427 U.S. 215, 225 (1976); see also Meisberger v. Cotton, 181 F.Appx. 599, 600 (7th Cir. 2006) ("[T]ransfers from one prison to another with a more adverse condition of confinement do not affect a recognized liberty interest."); King v. Fairman, 997 F.2d 259, 262 n.4 (7th Cir. 1993) (noting that "an inmate has no liberty interest in confinement at any particular state prison" and "prison officials may effect discretionary transfers of an inmate without implicating the due process clause"). Here, Birdo is not attacking his initial transfer from Pontiac to Menard, but is instead claiming that he has a due process right related to his discretionary transfer out of Menard and into another institution. Because he lacks a liberty interest in such a transfer, his due process claim must fail.

Birdo tries to skirt dismissal of his transfer claim by stating that he has a procedural due process right to have his transfer application submitted, even if he lacks a protectable liberty interest in the ultimate transfer. Not so. The essential ingredient of a due process claim is a protected liberty interest-without that liberty interest, there is no process due. See, e.g., Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011) (the "alleged mishandling" of a grievance could not support a due process claim, as "grievance procedures" do not "by their very existence create interests protected by the Due Process Clause"); Solomon v. Elsea, 676 F.2d 282, 284 (7th Cir. 1982) ("It is axiomatic that before due process protections can apply, there must first exist a protectable liberty or property interest."). In other words, a prisoner cannot have a due process claim concerning the "mishandling" of a transfer request if he has no underlying "liberty interest" in a transfer to another facility. Courtney v. Devore, 595 F.Appx. 618, 621 (7th Cir. 2014). Because Birdo has no procedural due process rights related to his transfer request out of Menard and into another facility, Count 5 must be dismissed with prejudice.

Birdo's claim concerning his right to apply for a discretionary restoration of his good conduct credits (Count 6) fails for similar reasons. To be sure, prisoners typically have a "liberty interest in good time credits, " and are "entitled to due process before the State may revoke those credits." Cochran v. Buss, 381 F.3d 637, 638 (7th Cir. 2004). But Birdo is not attacking the initial revocation of his credits; instead, he wants to apply for a discretionary restoration of his credits pursuant to ILL. ADMIN CODE tit. 20, § 107.160(c). In this vein, the discretionary provision or restoration of credits creates no liberty interest. See, e.g., Hadley v. Holmes, 341 F.3d 661, 665 (7th Cir. 2003) (noting that the prospective good time sought by the prisoner was "entirely within the control of the Director, " and there is "no due process protection for action that merely might affect the duration of the sentence"); Montgomery v. Anderson, 262 F.3d 641, 645 (7th Cir. 2001) (no liberty rights for system "making release entirely discretionary"); Hallmark v. Johnson, 118 F.3d 1073, 1079 (5th Cir. 1997) (no "protected liberty interest in the restoration of good time credits" ...

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