Delago v. Godinez et al

Filing 13

MERIT REVIEW OPINION - Entered by Judge Sara Darrow on 11/6/2015. See Written Order. (Rule 16 Deadline 1/5/2016.) Plaintiff's claims for attorney contact visits, interference with mail, rights to a grievance process, retaliation, and violations under the Equal Protection Clause and the Geneva Convention are DISMISSED, with prejudice, for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. Defendants Godinez, Pfister, Pierce, Jadron, Riccolo and Mornin g are DISMISSED. The Clerk is directed to TERMINATE them as parties. Plaintiff's claim that Defendants Pope, Hitchens and Forest interfered with his access to courts by terminating the May 16, 2015 visit with his attorney is DISMISSED. Plainti ff is given 30 days in which to replead this claim, only. Failure to file an amended complaint within 30 days will result in the dismissal of this case, without prejudice, for failure to state a claim. The Court finds that Plaintiff is competent to represent himself at this stage of the proceedings. 5 is DENIED. 6 is DENIED, with leave to reassert. Plaintiff's Motions for Status 9 , 10 and 12 are rendered MOOT by this Order. (LN, ilcd)

E-FILED

Friday, 06 November, 2015 10:30:59 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
DAVID DELAGO,

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Plaintiff,
v.
SALVADOR GODINEZ, et al.,
Defendants.

No.: 15-cv-1180-SLD

MERIT REVIEW ORDER
Plaintiff, proceeding pro se, pursues a § 1983 action against former IDOC Director
Salvatore Godinez, Warden Randy Pfister, Assistant Warden Guy Pierce, IDOC staff counsel,
Michael Jadron, Officer Pope, Lieutenant Hitchens, Lieutenant Forest, Officer Riccolo and
Sergeant Morning. 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).
Plaintiff alleges violations of his First, Fourth, Fifth, Sixth and Fourteenth Amendment
rights as well as Equal Protection and rights under the Geneva Convention. Plaintiff is
incarcerated at the Pontiac Correctional Center which apparently does not allow contact visits.
Plaintiff is represented by counsel in the appeal of his criminal conviction and must meet with
counsel in a booth, with a glass wall between them. They speak through a microphone system
where their conversations may, allegedly, be overheard by others. If Plaintiff and his attorney
wish to review documents, a guard must take the documents from one side to the other; the
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attorney must mail them in advance; or the documents must be held up to the glass. Plaintiff
claims a constitutional right to contact visits with counsel and alleges that the non-contact policy
restricts his meaningful access to the courts.
Plaintiff claims, further, that on a single occasion his legal mail was opened outside of his
presence. On another occasion mailroom staff refused to mail a manila envelope to his attorney,
claiming that the address was “illegal”. Plaintiff claims, further, that on 5/16/15, Defendant Pope
told his attorney that the visit had to conclude by 2:30 p.m. Defendants Hitchens and Forest
subsequently entered the booth, without knocking, and ended the visit. Finally, he claims that
Officer Riccolo and Sgt. Morning threatened to write him a disciplinary ticket if he continued to
insist on contact visits with counsel. Plaintiff requests compensatory and punitive damages as
well as injunctive and declaratory relief.
Plaintiff’s belief that he has a constitutional right to contact visits with counsel is simply
not correct. In Block v. Rutherford, 468 U.S. 576, 576-77 (1984) the Court upheld a jail’s
prohibition on all contact visits. The Court reasoned:
[t]here are many justifications for denying contact visits entirely, rather
than attempting the difficult task of establishing a program of limited
visits such as that imposed here. Nothing in the Constitution requires that
detainees be allowed contact visits; responsible, experienced
administrators have determined, in their sound discretion, that such visits
will jeopardize the security of the facility and other persons.
In Overton v. Bazzetta, 539 U.S. 126, 132 (2003), the high court noted that freedom of
association is often incompatible with incarceration. It upheld the complete ban by the Michigan
Department of Corrections on; visitation by minor nieces and nephews where parental rights had
been terminated, visitation by former inmates, and a two year ban on visitation for inmates with
two or more substance-abuse violations. It found, “[w]e must accord substantial deference to the
professional judgment of prison administrators, who bear a significant responsibility for defining
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the legitimate goals of a corrections system and for determining the most appropriate means to
accomplish them. … The burden, moreover, is not on the State to prove the validity of prison
regulations but on the prisoner to disprove it”. Id. at 132.
While Illinois statute guarantees inmates the right to receive visitors, that right is not
unqualified.1 See Parker v. Snyder, 352 Ill. App. 3d 886, 889 (Ill. App.Ct. 4th Dist. 2004), “[t]he
plain language of section 3–7–2(f) does not grant unrestricted visitation; it merely allows inmates
to receive visitors, and even then just to the extent it does not hinder the safety or security of the
institution or facility.” Here, Plaintiff doesn’t claim that he was denied visits by counsel, only
that he was denied contact visits with counsel. See Robinson v. Illinois State Corr. Ctr.
(Stateville) Warden, 890 F. Supp. 715, 719 (N.D. Ill. 1995)(inmate failed to state claim for
reduction in visitation time where he was not denied all visitation or denied the right to see
particular visitors). Id. at 715. To the extent that Plaintiff alleges violations of his First, Fourth,
Fifth, Sixth and Fourteenth Amendment rights based on the denial of attorney contact visits,
these claims are DISMISSED, with prejudice.
On May 16, 2013 Defendant Pope allegedly told Plaintiff’s counsel that their visit would
have to end by 2:30 p.m. Subsequently, Defendants Hitchens and Forest entered the conference
room where Plaintiff was meeting with his attorney, and terminated the visit. The Complaint
indicates that counsel told Plaintiff that he would return at a later time and Plaintiff, did in fact,
meet with counsel on subsequent occasions.

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730 ILCS 5/3-7-2(f): All of the institutions and facilities of the Department shall permit every committed person to
receive visitors, except in case of abuse of the visiting privilege or when the chief administrative officer determines
that such visiting would be harmful or dangerous to the security, safety or morale of the institution or facility. The
chief administrative officer shall have the right to restrict visitation to non-contact visits for reasons of safety,
security, and order, including, but not limited to, restricting contact visits for committed persons engaged in gang
activity.

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While Plaintiff asserts interference with his right to counsel, he admits to meeting with
counsel on this, and subsequent dates. The Fourteenth Amendment guarantees meaningful
access to courts, [and] ... the opportunity to communicate privately with an attorney is an
important part of that meaningful access.” Guajardo-Palma v. Martinson, 622 F.3d 801, 802 (7th
Cir. 2010). An access to courts claim must allege a detriment to ongoing litigation. Id. at 802.
As Plaintiff alleges no any detriment, this claim is DISMISSED though Plaintiff will be given
leave to amend.
Plaintiff claims that on February 15, 2013, Defendants opened a letter from his attorney,
outside of his presence. Additionally, on March 4, 2013, the mailroom staff refused to mail a
manila envelope to his attorney because the address was “illegal”. These two incidents,
however, are not enough to state a denial of meaningful access to the courts. The unjustified
opening of mail from an attorney is actionable only if it has hindered an ongoing claim.
Guajardo-Palma at 802. Similarly, “…merely alleging an isolated delay or some other relatively
short-term ... disruption in the delivery of inmate reading materials will not support ... a cause of
action …” Shatner v. Atchison, No. 13-00599, 2013 WL 3771541, at *9 (S.D. Ill. July 17,
2013). See also, Shango v. Jurich, 965 F.2d 289, 291 (7th Cir. 1992) (Plaintiff must allege
detriment). Accordingly, this claim is DISMISSED, with prejudice.
Plaintiff claims that unspecified defendants “lied” when they told him his grievances
were filed too late. He complains, also, that they failed to respond to his grievances regarding
the denial of attorney contact visits. Plaintiff, however, does not have a constitutional right to a
grievance process. Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). Furthermore,
prison officials incur no liability under § 1983 if they fail or refuse to investigate grievances.
Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005). This claim is DISMISSED, with prejudice.

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Plaintiff appears to allege retaliation for Defendants Riccolo and Morning threatening
him with discipline if he continued to demand contact visits. Defendants are liable for retaliation
only if their actions were in response to Plaintiff’s exercise of a constitutionally protect right.
DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). Here, Plaintiff does not have a
constitutional interest in attorney contact visits so there was no constitutional exercise against
which Defendants were retaliating. This claim is DISMISSED, with prejudice.
Plaintiff’s Equal Protection claim also fails as he alleges that Defendants were acting
pursuant to a prison-wide policy of non-contact visitation. Plaintiff cannot claim that he received
disparate treatment compared to other similarly situated prisoners; or that he was arbitrarily
singled out for unfair treatment, where the complained-of conditions which were imposed on all
inmates. Abcarian v. McDonald, 617 F.3d 931, 938 (7th Cir. 2010).
Lastly, Plaintiff does not have standing to assert a claim under the Geneva Convention as
there is no declared war between the United States and his country of origin, Mexico. Article 2
of the Geneva Conventions limits the application to “cases of declared war or of any other armed
conflict which may arise between two or more of the High Contracting Parties.” Hamdan v.
Rumsfeld, 548 U.S. 557, 628-31 (2006). Furthermore, “[t]he courts have consistently held that
the Geneva Conventions and Protocol I are not self-executing and, thus, provide no basis for the
enforcement of private rights in domestic courts.” United States v. Fort, 921 F. Supp. 523, 526
(N.D. Ill. 1996). This claim is DISMISSED, with prejudice.
Plaintiff states a colorable access to courts claim for the early termination of his May 16,
2013 visit with his attorney. The remainder of his claims are DISMISSED, with prejudice.

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IT IS THEREFORE ORDERED:
1)

Plaintiff's claims for attorney contact visits, interference with mail, rights to a

grievance process, retaliation, and violations under the Equal Protection Clause and the Geneva
Convention are DISMISSED, with prejudice, for failure to state a claim pursuant to Fed. R. Civ.
P. 12(b)(6) and 28 U.S.C. § 1915A. Any amendment to these claims would be futile as they do
not implicate recognized constitutional rights.
2) Defendants Godinez, Pfister, Pierce, Jadron, Riccolo and Morning are
DISMISSED. The Clerk is directed to TERMINATE them as parties.
3) Plaintiff’s claim that Defendants Pope, Hitchens and Forest interfered with his
access to courts by terminating the May 16, 2015 visit with his attorney is DISMISSED.
Plaintiff is given 30 days in which to replead this claim, only. If Plaintiff chooses to replead, he
is to identify the Complaint as a First Amended Complaint. The amended complaint will replace
Plaintiff's original complaint in its entirety and must be complete on its own, without reference to
any other pleading. Piecemeal amendments are not accepted.
4) Failure to file an amended complaint within 30 days will result in the dismissal of
this case, without prejudice, for failure to state a claim.
5) Plaintiff files a Motion for Appointment of Counsel [5] indicating that he has
contacted two attorneys’ offices, requesting representation. In considering Plaintiffs Motion, the
Court asks: (1) has the indigent Plaintiff made a reasonable attempt to obtain counsel or been
effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the
plaintiff appear competent to litigate it himself? Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir.
2007), citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993). Even though Plaintiff has not
demonstrated that he made a reasonable attempt to obtain counsel on his own, the Court will

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consider the second part of the inquiry; does the plaintiff appear competent to litigate it himself?
The complaint contains a statement from Plaintiff’s appellate attorney attesting that Plaintiff “has
become a paralegal and he has prepared his second Post Conviction Hearing.” [ECF 1 p. 23].
The Court finds that Plaintiff is competent to represent himself at this stage of the proceedings.
[5] is DENIED.
6) Plaintiff files a Motion for Appointment of an Interpreter [6]. The Court notes
that Plaintiff has filed a 45 page handwritten complaint with over 50 additional pages of
attachments. His complaint is well written, grammatically correct and alleges numerous,
complex constitutional violations. While the Court has no opinion as to the quality of Plaintiff’s
spoken English, it is clear that he can communicate effectively in writing. [6] is DENIED, with
leave to reassert.
7) Plaintiff’s Motions for Status [9], [10] and [12] are rendered MOOT by this
Order.

_ 11/6/2015
ENTERED

s/Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE

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