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Birdo v. Director I.D.O.C.

United States District Court, S.D. Illinois

June 26, 2015

KEVIN A. BIRDO, #B28737, Plaintiff,
v.
DIRECTOR I.D.O.C., CHRISTOPHER MATHIS, S. HILL, and DOE GRIEVANCE OFFICER, Defendants.

MEMORANDUM AND ORDER

NANCY J. ROSENSTENGEL, District Judge.

Plaintiff Kevin Birdo is currently incarcerated at the Lawrence Correctional Center in Sumner, Illinois, but was previously incarcerated at the Menard Correctional Center in Menard, Illinois. (Doc. 12 at 1, 6.) Proceeding pro se, Birdo has filed an amended complaint against two counselors at Menard, a Doe grievance officer at Menard, and the Director of the Illinois Department of Corrections. ( Id. at 1-2.) Birdo claims that the counselors failed to submit his discretionary requests for transfer and good conduct restoration because of Birdo's history of lawsuits and grievances; that the Doe officer violated his due process rights by mishandling his grievances concerning the counselors' conduct; that the Director violated his due process rights by setting up an ineffective grievance system; and that all of the defendants were negligent under Illinois law. ( Id. at 6-10.) Birdo seeks money damages and an injunction, and he also has filed a motion asking for preliminary injunctive relief and other relief. ( See Doc. 11 & Doc. 12)

This matter is now before the Court for a review of Birdo's amended complaint pursuant to 28 U.S.C. § 1915A, as well as consideration of his separate motion. 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 review under § 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."

Background

On April 24, 2015, Birdo filed his initial § 1983 complaint, naming the Director of the Illinois Department of Corrections, the Prisoner Review Board, the Transfer Coordinator, the Warden of Menard Correctional Center, and two corrections counselors. (Doc. 1 at 1.) He alleged that officials retaliated against him because he assaulted an officer; that officials denied him due process by refusing to process his discretionary requests for transfer and good conduct restoration; that officials exposed him to inhumane conditions; and that officials denied him access to legal mail and the courts. ( Id. at 5-14.) On April 27, 2015, the Court dismissed the retaliation, conditions, and access claims without prejudice and the due process claims with prejudice. (Doc. 5.) Birdo was given until June 5, 2015, to file an amended complaint. ( Id. )

On May 27, 2015, Birdo sent his First Amended Complaint to the Court.[1] (Doc. 12.) The amended complaint again names Mathis and Hill-Birdo's counselors at Menard-as well as the Director of the Illinois Department of Corrections and a Doe grievance officer. ( Id. at 1.) By way of his new complaint, Birdo re-asserts retaliation claims against Mathis and Hill, this time saying that they refused to submit his applications for discretionary transfer and discretionary good conduct restoration because he filed lawsuits against the Illinois Department of Corrections and filed grievances against them. ( Id. at 6-7.) He also claims that Mathis's and Hill's failure to submit his applications violated the Illinois Administrative Code, and he seeks to "attach" Illinois state law claims against them for "professional negligence." ( Id. )

Over and above his claims against Mathis and Hill, Birdo also raises new claims against a Doe grievance officer at Menard and the Director of the Illinois Department of Corrections. ( Id. at 7-10.) He says that he wrote Doe grievances about the counselors' conduct but Doe did not respond or process his grievances. ( Id. at 7-8.) He also claims that the Director received letters about the counselors' conduct and did not respond, did not set up a functioning grievance process for all Illinois state prisoners, and did not properly train staff under Illinois law. ( Id. at 8-10.)

By way of his suit, Birdo seeks money damages and an injunction ordering the Director to set up a proper grievance process. ( Id. at 11.) He also has filed a motion to address the Court with his complaint, asking the Court to attach an exhibit to his amended complaint and to issue a preliminary order compelling the Director to respond to one of Birdo's grievances. (Doc. 11.)

Discussion

Birdo's complaint focuses on retaliation by Mathis, Hill, Doe, and the Director, so the Court will start there (Count 1). To put forth a retaliation claim, a prisoner must "plausibly allege" that he "engaged in activity protected by the First Amendment, " that he "suffered an adverse action that would likely deter future First Amendment activity, " and that the "First Amendment activity was at least a motivating factor in the defendants' decision to retaliate." Santana v. Cook Cnty. Bd. of Review, 679 F.3d 614, 622 (7th Cir. 2012). Here, Birdo alleges that Mathis and Hill refused to process his discretionary transfer and restoration requests, that they engaged in this conduct because he filed grievances against them and lawsuits against the Department of Corrections, and that this conduct harmed him. That is sufficient to put forth an arguable claim for screening review purposes, so Count 1 may proceed as to Mathis and Hill.

While his complaint is far from clear, Birdo might also be attempting to bring the Director and Doe into the federal retaliation claim-he says that he sent letters to the Director and filed a grievance with Doe about the retaliation, but neither party did anything. Birdo should know that high-level officials typically cannot be roped into a constitutional claim merely by receiving letters or participating in the grievance process. See, e.g., Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009) (rejecting effort by prisoner to allege personal involvement by engaging in a "letter-writing campaign" to state officials, such as the Governor and the Superintendent of Prisons); Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011) ("[T]he alleged mishandling of [a prisoner's] grievance by persons who otherwise did not cause or participate in the underlying conduct states no claim."). It is true that a prisoner can sometimes state a claim against an official when a communication advises the official of cruel conditions of confinement and the official is indifferent to those conditions. See, e.g., Santiago v. Wells, 599 F.3d 749, 758-59 (7th Cir. 2010) (grievance informing warden that officers were placing the prisoner with dangerous inmates "sufficient, at the pleading stage, to state a claim that [the warden] actually knew or consciously turned a blind eye"); Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996) ("[A]n inmate's communications can, under some circumstances, constitute sufficient knowledge of the conditions to require the officer to exercise his or her authority and to take the needed action to investigate and, if necessary, to rectify the offending condition."). But Birdo's claims against the Director and Doe are not premised on indifference to cruel conditions, but retaliation, and these claims would be viable only if Birdo alleged that the Director or Doe acted or failed to act based on Birdo's protected conduct. See Santana, 679 F.3d at 622. Birdo does not allege anything like that here, so Count 1 must be dismissed without prejudice as to the Director and Doe.

Birdo also seems to assert a free-standing federal claim against the Director and Doe related to the prison grievance system-he says that John Doe mishandled his grievances and that the Director set up a faulty grievance system in all Illinois prisons (Count 2). This claim is a non-starter: the Seventh Circuit has rejected any free-standing due process claim concerning a prison's grievance process. See, e.g., Courtney v. Devore, 595 F.Appx. 618, 620-21 (7th Cir. 2014) (noting that "state grievance procedures do not create substantive liberty interests protected by due process, " and the "mishandling" of those grievances states no claim); Owens, 635 F.3d at 953-54 ("Prison grievance procedures are not mandated by the First Amendment and do not by their very existence create interests protected by the Due Process Clause...."). Rather, the right to a grievance procedure exists only to ensure access to the courts. See Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th Cir. 2008) (noting that the "procedural right" concerning the handling of grievances exists "to ensure that prisoners and detainees can access the courts"). Here, Birdo has not alleged a barrier to court access, and his "invocation of the judicial process" points in the opposite direction. Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 2009). More to the point, it would be tough for Birdo to allege that grievance issues blocked his way to court-if officials "do not respond to a properly filed grievance or otherwise use affirmative misconduct to prevent a prisoner from exhausting, " the grievance system would be unavailable, and the way to federal court would be clear. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (prison remedies deemed exhausted remedies where "prison officials were responsible for the mishandling of [a prisoner's] grievance"). In any event, because Birdo has not alleged a barrier to court, Count 2 must be dismissed without prejudice.

The remainder of Birdo's claims are brought under Illinois state law. Birdo alleges that Mathis and Hill were "professionally negligent" when they failed to submit his transfer and restoration requests (Count 3) and that the Doe grievance officer was negligent when he failed to process Birdo's grievances about Mathis's and Hill's conduct (Count 4). Birdo also brings a host of negligence allegations against the Director, saying that he was negligent for not responding to Birdo's letters about Mathis's and Hill's conduct (Count 5), for not training staff (Count 6), and for not providing a "thorough process" for all prisoners to file grievances (Count 7). Where a district court has original jurisdiction over a civil action, as is the case here, it also has supplemental jurisdiction over related state law claims pursuant to 28 U.S.C. § 1367(a), so long as the state claims "derive from a common nucleus of operative fact with the original federal claims." Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). While this is not a weighty standard, supplemental jurisdiction is not appropriate merely because the claims are "tangentially related" or share a broad factual background. Hernandez v. Dart, 635 F.Supp.2d 798, 814 (N.D. Ill. 2009). Instead, the question is whether the proof necessary for the state claim overlaps with the proof necessary for the federal claim. See, e.g., White v. Addante, 498 F.Supp.2d 1109, 1112 (N.D. Ill. 2007) (no jurisdiction over state assault claim in case involving unconstitutional arrest, as the plaintiff did not need to "establish that [she] was assaulted in order to prove that her arrest was unconstitutional"); Berg v. BCS Fin. Corp., 372 F.Supp.2d 1080, 1093 (N.D. Ill. 2005) (no jurisdiction over state contract claim because there was no need to prove that a party breached a contract to make out an ERISA claim).

Birdo only has one surviving federal claim-his claim against Mathis and Hill for retaliation. To win on that claim, Birdo will need to prove that he "engaged in activity protected by the First Amendment, " that he "suffered an adverse action that would likely deter future First Amendment activity, " and that the "First Amendment activity was at least a motivating factor in the defendants' decision to retaliate." Santana, 679 F.3d at 622. The state claims against Mathis and Hill are sufficiently connected to the federal retaliation claim to warrant supplemental jurisdiction: the state claims against these two relate to the mishandling of Birdo's transfer and good conduct applications, and that is the adverse action complained of in the federal retaliation claim. But the remaining state claims bear only a tangential relationship to the federal claim. To make out his federal retaliation claim against Mathis and Hill, Birdo will not need to establish that his grievance about their conduct was mishandled, that various jail officers and officials were incorrectly trained, or that the Director has set up a faulty grievance system in place for all Illinois prisoners. Accordingly, the Court ...


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