United States District Court, C.D. Illinois
MERIT REVIEW ORDER
MICHAEL M. MIHM, UNITED STATES DISTRICT JUDGE
proceeding pro se, pursues a § 1983 action
alleging violations of procedural due process at the Pontiac
Correctional Center (“Pontiac”). 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 unadorned,
Wilson v. Ryker, 451 Fed.Appx. 588, 589 (7th Cir.
2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
alleges that on February 5, 2018 and February 8, 2018,
Defendant Nurse McGrath wrote him disciplinary tickets for
sexual misconduct. Defendant McGrath claimed that on both
occasions, Plaintiff stood in the doorway or window of his
cell masturbating, as she was passing medications in the
North Cell House. Plaintiff has provided copies of the
tickets which indicate, on their face, that Plaintiff refused
to sign the tickets and that the charges were read to him.
The two matters went to hearing on February 14, 2018, before
Adjustment Committee members, Defendants Dalton and Wolf. The
report of hearing asserts, and Plaintiff does not dispute,
that he refused to attend the hearing. Plaintiff was found
guilty of sexual misconduct and sentenced to a two-month term
of C Grade, segregation, commissary restrictions and
audio/visual restrictions. [ECF 1 p. 9].
February 28, 2018, Plaintiff filed two essentially identical
grievances. One grieved the February 5, 2018 incident, and
the other February 8, 2018 incident. In the grievances,
Plaintiff denied having masturbated and asked that security
camera footage be reviewed so he could be exonerated. On
March 12, 2018, Defendant Grievance Officer Simpson
recommended denial of the grievance of the February 5th
incident and, on May 4, 2018, denial of the grievance of the
February 8th incident. On June 22, 2018 and July 2, 2018,
respectively, Administrative Review Board (“ARB”)
member Defendant Amy Burle affirmed the denial of the
makes a generalized claim that he was denied due process at
the February 14, 2018 hearing as he was deprived of his
“only substantial defense, ” the video footage
which would have allegedly exonerated him. Plaintiff names
Defendant McGrath; Adjustment Committee members, Dalton and
Wolf; Grievance Officer Simpson; and ARB member, Burle.
1983 provides a cause of action for the deprivation of
procedural due process. To 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).
process protections afforded a prisoner facing a disciplinary
hearing include advance written notice of the charges against
him; the opportunity, at the discretion of officials, to
produce witnesses and documentary evidence in his defense;
and a written statement of the reasons for the disciplinary
action taken. Wolff v. McDonnell, 418 U.S. 539,
563-67 (1974). Here, Plaintiff has provided evidence that he
was given advance notice of the charges which, when he
refused to sign, were read to him. While Plaintiff otherwise
had an opportunity to identify witnesses and produce
documentary evidence in his defense, he does not claim that
he did so. Plaintiff, in fact, refused to appear at the
hearing and did not testify or dispute the charges. While
Plaintiff requested the production of surveillance
videotapes, he did not do so until filing his February 28,
2018 grievances, two weeks after the conclusion of the
Court finds that Plaintiff had available due process
protections available to him but failed to utilize them.
See Domka, 523 F.3d at 781. “It is without
question that an individual may waive his or her procedural
due process rights…. (a waiver ordinarily is ‘an
intentional relinquishment or abandonment of a known right or
privilege').” (Internal citations omitted). Here,
Plaintiff does not plead a claim that any Defendant violated
his due process rights but, rather, that he voluntarily
waived those rights by not participating in the hearing or
asking for the production of the videotapes prior to hearing.
As a result, Plaintiff fails to state a claim and this case
IS THEREFORE ORDERED:
Plaintiff's complaint is dismissed for failure to state a
claim pursuant to Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. §
1915A. Any amendment to the Complaint would be futile because
Plaintiff cannot state a colorable due process claim under
these facts. This case is therefore closed. The clerk is
directed to enter a judgment pursuant to Fed.R.Civ.P. 58.
dismissal shall count as one of the plaintiff's three
allotted “strikes” pursuant to 28 U.S.C. Section
1915(g). The Clerk of the Court is directed to record
Plaintiff's strike in the three-strike log.
Plaintiff must still pay the full docketing fee of $350 even
though his case has been dismissed. The agency having custody
of Plaintiff shall continue to make monthly payments to the
Clerk of Court, as directed in the Court's prior order.
Plaintiff wishes to appeal this dismissal, he must file a
notice of appeal with this Court within 30 days of the entry
of judgment. Fed. R. App. P. 4(a). A motion for leave to
appeal in forma pauperis should set forth the issues
Plaintiff plans to present on appeal. See Fed. R. App. P.
24(a)(1)(C). If Plaintiff does choose to appeal, ...