United States District Court, C.D. Illinois
MERIT REVIEW AMENDED COMPLAINT
MICHAEL M. MIHM UNITED STATES DISTRICT JUDGE.
proceeding pro se, files an amended complaint alleging
violations of procedural due process, sexual harassment, and
retaliation at the Hill Correctional Center
(“Hill”). The case is before the Court for a
merit review pursuant to 28 U.S.C. § 1915A. In reviewing
the Complaint, the Court accepts the factual allegations as
true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649-51 (7th Cir.
2013). However, conclusory statements and labels are
insufficient. Enough facts must be provided to “state a
claim for relief that is plausible on its face.”
Alexander v. United States, 721 F.3d 418, 422 (7th
Cir. 2013)(citation and internal quotation marks omitted).
While the pleading standard does not require “detailed
factual allegations”, it requires “more than an
accusation.” Wilson v. Ryker, 451 Fed.Appx.
588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
makes sexual harassment claims against Officers Saltus,
Ziegler and Perez. He claims that the three Defendants
“threw a spotlight” on homosexual inmates,
allowing them to wear tight clothing, to “flaunt
themselves” about the facility and to color their lips
with Kool-Aid. He alleges that Defendants Saltus, Ziegler and
Perez called him a hermaphrodite; that Perez called him
“The President of Galesburg Fags Anonymous”,
“fruity” and an “undercover fag.” He
claims that Defendant Ziegler said he could “swallow a
banana like a champ.” While Plaintiff alleges that
these statements caused him distress, this is not enough to
state a constitutional violation. See DeWalt v.
Carter, 224 F.3d 607, 612 (7th Cir. 2000)
(defendant's “racially derogatory and sexually
explicit language properly dismissed” because,
“[s]tanding alone, simple verbal harassment does not
constitute cruel and unusual punishment, deprive a prisoner
of a protected liberty interest or deny a prisoner equal
protection of the laws”). These claims are DISMISSED.
asserts additional claims against Defendant Saltus. He
alleges that on March 16, 2016, Defendant Saltus asked when
Plaintiff had last sucked his cellmate's cock. He also
threatened to strip search Plaintiff to see the size of his
penis. On another occasion, Defendant Saltus accused
Plaintiff of stealing an ink pen and searched him, forcefully
squeezing his buttocks and genitals saying “this should
teach you”. On another occasion, Defendant allegedly
strip searched Plaintiff and bragged to a co-worker about
what he had done to “the queer”.
prison officials are permitted to touch, pat down and search
a prisoner in order to determine whether the prisoner is
hiding anything dangerous in his person, they may not do so
“in a harassing manner intended to humiliate and
inflict psychological pain.” Turner v.
Huibregtse, 421 F.Supp.2d 1149, 1151 (W.D. Wis. March
22, 2006). Officials violate the Eighth Amendment when a
search is “so totally without penological justification
that it results in the gratuitous infliction of
suffering.” Calhoun v. DeTella, 319 F.3d 936,
939 (7th Cir. 2003). Allegations that a search was conducted
in a harassing manner, and not in an effort to advance a
legitimate security interest, will state a constitutional
violation. See Turner, (the grabbing of a
prisoner's buttocks and the fondling of his penis do not
advance a legitimate security interest). Here, Plaintiff has
sufficiently alleged that Defendant Saltus violated his Eight
Amendment rights without penological justification.
claims that on March 16, 2016, he grieved the alleged sexual
harassment by Defendants. These allegations were investigated
and, on June 27, 2016, Defendant Bryant issued Plaintiff a
disciplinary ticket for impeding an investigation, noting
that the allegations of sexual harassment had been
investigated and deemed unfounded. Plaintiff disputes the
Court's prior merit review finding in which it identified
the disciplinary ticket as issuing on June 27, 2016.
Plaintiff claims that it was issued on March 16, 2016. The
ticket, however, appears only to record March 16th
as the date on which Plaintiff made his sexual harassment
complaint. The ticket was issued on June 27, 2016, after the
investigation concluded, and was served on Plaintiff on June
28, 2016. The matter went to hearing on July 1, 2016. [ECF 12
was found guilty of impeding or interfering with an
investigation. The Adjustment Committee noted Defendant
Bryant's investigation and report which was based on
Plaintiff's request slip, handwritten letter, cumulative
counseling summary, mental health progress notes and
“credible statements”. Defendant concluded that
Plaintiff brought false allegations so that he would be
transferred from Hill to the Pontiac Farm or Dixon
Correctional Center, a request which had previously been
claims that Defendant Bryan violated his due process rights
by bringing the false charge, not timely serving the ticket
and not timely taking the matter to hearing. Plaintiff claims
that he was served the ticket on June 28, 2016, 104 days
after his initial complaint. He claims that under department
rules he should have been served within eight days of March
16, 2016, the day he made the complaint. He also claims that
the hearing was untimely as it was conducted 107 days after
the infraction, rather than the required 14 days. Plaintiff
cites Ill.Adm.Code § 504.30(f) and 504.80(a), in
determine whether due process has been violated, the Court
must determine whether the plaintiff was deprived of a
constitutionally protected liberty or property interest and,
if so, what process was due under the circumstances.
Charleston v. Bd. of Trustees, 741 F.3d 769, 772
(7th Cir. 2013). A due process claim must identify a
constitutionally recognized interest in liberty or property
of which plaintiff was deprived. Domka v. Portage
County, 523 F.3d 776, 779-80 (7th Cir. 2008). In other
words, if a constitutional right is identified, then
procedural due process must be provided. Brokaw v. Mercer
Co., 235 F.3d 1000, 1020 (7th Cir. 2000).
Plaintiff claims that he spent 153 days in segregation where
he was exposed to inmates throwing feces and urine. He claims
that his breathing was affected by pepper spray used during
cell extractions and that he was subjected to severe
isolation being celled 24 hours per day. Here, Plaintiff
pleads enough to identify a cognizable liberty interest.
See Sandin v. Conner, 515 U.S. 472, 484
(1995)(inmate may have a liberty interest if the conditions
of his or her disciplinary confinement impose “atypical
and significant hardship[s] ... in relation to the ordinary
incidents of prison life.”)
next issue is what process was due Plaintiff. Prison
disciplinary hearings satisfy procedural due process
requirement where an inmate is provided: (1) written notice
of the charge against the prisoner twenty-four hours prior to
the hearing; (2) the right to appear in person before an
impartial body; (3) the right to call witnesses and to
present physical/documentary evidence, but only when doing so
will not unduly jeopardize the safety of the institution or
its correctional goals; and (4) a written statement of the
reasons for the action taken against the prisoner.
Beecham v. Lt. Timothy Veath, 13-1003, 2015 WL
6956582, at *3 (S.D. Ill. Nov. 10, 2015) citing Wolff v.
McDonnell, 418 U.S. 539, 555 (1974).
Plaintiff does not claim that lack of notice, the inability
to appear or call witnesses, or that he did not receive a
written statement identifying the reasons for the findings.
Rather, he claims that he did not receive due process due to
violation of the internal timeframes for serving the ticket
and convening the hearing. Plaintiff bases this on his belief
that March 16, 2016, was the date of his alleged infraction.
That date, however, was the date Plaintiff made a complaint
which was found to be false after the investigation was
concluded, presumably on June 27, 2016, the date on the
ticket supports June 27, 2016 as the day the investigation
concluded and the infraction was substantiated. See Ellis
v. Peters, 21 F.3d 430 (7th Cir. 1994) (disciplinary
hearing timely if conducted “within eight calendar days
after the commission of the offense or its
discovery....” Id. at *3 (emphasis in
original). “Were prison officials required to charge
inmates within eight days of every incident, the prison would
be unable to investigate such matters fully and
carefully.” Id. at *3. Furthermore, Plaintiff
does not identify any prejudice due to the allegedly delayed
investigation. See Smith v. Umbdenstock, 962 F.2d 11
(7th Cir. 1992) (plaintiff failed to establish that issuance
of disciplinary ticket outside the eight day timeframe
prejudiced him and violated due process).
the Court were to find that the ticket and hearing were not
timely, “a violation of Section 504.80(a) in and of
itself does not amount to a constitutional violation. The
requirements of due process outlined in Wolff do not
impose an eight-day limit on charging and trying inmates on
prison disciplinary.” Id. at *3. See also,
Beecham, 2015 WL 6956582, at *3 (S.D. Ill. Nov. 10,
2015) (failure to follow timeframes ...