Brown v. McAdory et al
Filing
116
OPINION: Defendants' supplemental motions for summary judgmentare granted in part and denied in part 109 , 110 . Defendants' unopposed motion to compel is granted 102 . Plaintiff is directed to respond to any outstanding discovery reque sts by June 1, 2015. Attorney Daniel Noll is appointed as pro bono counsel to represent Plaintiff at the trial and in any further pretrial proceedings. Discovery will not be reopened. A status conference is scheduled for June 12, 2015 at 2:00 p.m. to discuss whether the parties will consent to Magistrate Judge Schanzle-Haskins and to set a trial date. The final pretrial conference remains scheduled for July 8, 2015, at this point. The clerk is directed to issue a video writ to secure Plaintiff's presence at the status conference on June 12, 2015. SEE Written Opinion. Entered by Judge Sue E. Myerscough on 5/28/2015. (ME, ilcd)
E-FILED
Thursday, 28 May, 2015 03:55:53 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
BOBBY BROWN,
Plaintiff,
v.
EUGENE MCADORY,
JOSEPH HANKINS,
CURTIS PARSONS,
TARRY WILLIAMS,
SHAN JUMPER,
SHARLENE CARAWAY, and
JOSEPH PROCTOR,
Defendants.
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11-CV-3195
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his detention in the Rushville
Treatment and Detention Center. His claims arise from his
segregation between July 22-August 8, 2010, and again from March
24-April 4, 2011.
In Higgs v. Carver, 286 F.3d 437, 438 (7th Cir. 2002), the
Seventh Circuit stated that "[a] pretrial detainee cannot be placed in
segregation as a punishment for a disciplinary infraction without
notice and an opportunity to be heard; due process requires no
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less.” Defendants do not label the confinement Plaintiff experienced
“segregation,” but it effectively was. Plaintiff was placed in an empty
room by himself with nothing but the clothes on his back and, in the
2010 incident but not the 2011 incident, a mattress. He had no
freedom of movement, no property, no hygiene supplies, and no
change of clothes. His conditions were not like the mild punishment
imposed on a Rushville resident in Miller v. Dobier, 634 F.3d 412
(7th Cir. 2011), as Defendants argue. The resident in Miller could
leave his cell, have visitors, and have some property. Higgs clearly
establishes that Plaintiff was entitled to due process before his
placement in segregation. Defendants are not entitled to qualified
immunity.
On October 14, 2014, the Court denied summary judgment
and identified the following claims for trial: (1) lack of procedural
due process before Plaintiff’s placement in what amounted to
segregation cells; (2) a violation of Plaintiff’s First Amendment rights
to communicate while he was in those cells; and, (3) a claim that the
conditions of the cells on both occasions deprived Plaintiff of basic
necessities. The Court assumes familiarity with that opinion.
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Before the Court are Defendants’ supplemental summary
judgment motions on the First Amendment and procedural due
process claims.
The Court agrees with Defendants that Plaintiff has no viable
First Amendment claim. While in segregation, Plaintiff filed internal
grievances, internal requests, court pleadings, and he also sent
letters to friends and family. Plaintiff argues that he was able to do
so only “illegally” with the help of other residents who surreptitiously
helped him. However, Plaintiff points to no rule that prohibited him
from engaging in these communications and he was not punished
for doing so. Without an actual restriction on his ability to
communicate, Plaintiff suffered no deprivation of his First
Amendment rights.
Plaintiff also has no viable procedural due process claim based
on his placement in segregation in the 2010 incident, and he does
not seem to pursue such a claim. Plaintiff admits that he refused
direct orders to move from his room to a different room. The refusal
to move led to Plaintiff’s placement in segregation and another
disciplinary ticket against Plaintiff for interfering with facility
operations. Procedural due process protections were provided to
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Plaintiff on the disciplinary ticket for interference with operations,
but, in any event, no amount of process would have made a
difference since Plaintiff admits that he refused direct orders. Any
procedural due process omissions would have been harmless error.
Jones v. Cross, 637 F.3d 841, 846-47 (7th Cir. 2011)(delay in prison
disciplinary hearing harmless where no prejudice suffered); Piggie v.
Cotton, 344 F.3d 674, 678 (7th Cir. 2003)(applying harmless error
analysis to refusal to call witnesses in disciplinary hearings).
Plaintiff does have a viable procedural due process claim
regarding his placement in segregation in 2011. Whether Plaintiff
was initially put in segregation in order to protect himself and the
staff is a material factual dispute. Higgs, 286 F.3d at 438 (“As long
as the purpose [of segregation] was indeed a preventive rather than
a punitive one, he would not be entitled to notice and a hearing
[before the segregation].”) Additionally, the behavior committee did
not give Plaintiff sufficient written notice of the facts underlying the
charges. The only written notice of the charges states: “On the
above date and approximate time, Resident Brown, B threatened
staff.” (d/e 111-2, p. 1.) Plaintiff was not told who made the
accusation or what threat Plaintiff purportedly made, leaving him to
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guess about the allegations against him. See Northern v. Hanks,
326 F.3d 908, 910 (7th Cir. 2003)(advance written notice includes
charge and facts underlying the charge); White v. Indiana Parole Bd,
266 F.3d 759, 768 (7th Cir. 2001)(“rudimentary procedural
protections” include advance written notice of charges so that
accused can assemble defense). The parties argue over whether
sufficient notice would have made any difference, and Plaintiff’s
testimony is inconsistent on this score. Plaintiff testified that two
witnesses could have exonerated him as well as a video recording,
but then later Plaintiff agreed that he did not ask the behavior
committee to contact any witnesses. However, whether Plaintiff
could have or would have presented exonerating evidence if given a
chance is also a material disputed fact.
Plaintiff also states a claim that the conditions of confinement
in segregation were unconstitutional. If a jury believes Plaintiff,
Plaintiff was deprived of basic hygiene necessities like soap,
toothpaste, a toothbrush, a mattress, bedding, and a change of
clothes for over two weeks in the first incident and almost two weeks
in the second incident. Which Defendants were aware of these
conditions and had the authority to take reasonable action is a
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question for the jury. The Court notes, however, that Defendant
Jumper was not involved in the 2011 incident, and Defendant
Caraway was not involved in the 2010 incident.
IT IS ORDERED:
1.
Defendants’ supplemental motions for summary judgment
are granted in part and denied in part (109, 110). Summary
judgment is granted to Defendants on Plaintiff’s First Amendment
claims and on his procedural due process claims arising from the
2010 incident. The motions are otherwise denied.
2.
Defendants’ unopposed motion to compel is granted (102).
Plaintiff is directed to respond to any outstanding discovery requests
by June 1, 2015.
3.
Attorney Daniel Noll is appointed as pro bono counsel to
represent Plaintiff at the trial and in any further pretrial
proceedings. Discovery will not be reopened.
4.
A status conference is scheduled for June 12, 2015 at
2:00 p.m. to discuss whether the parties will consent to Magistrate
Judge Schanzle-Haskins and to set a trial date. The final pretrial
conference remains scheduled for July 8, 2015, at this point.
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5.
The clerk is directed to alert the pro bono coordinator
of the appointment of pro bono counsel in this case.
6.
The clerk is directed to issue a video writ to secure
Plaintiff’s presence at the status conference on June 12, 2015.
Counsel shall appear in person.
ENTER: 5/28/2015
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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