Carpenter v. Biermann et al

Filing 7

MERIT REVIEW OPINION entered by Judge Colin Stirling Bruce on 1/22/2014. Rule 16 Deadline 3/24/2014. See written opinion. Copy mailed to the Plaintiff as the scanner at Rushville is currently down. (JMW, ilcd)

E-FILED

Thursday, 23 January, 2014 10:25:37 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
JERMAINE CARPENTER,
Plaintiff,
v.
DAVID BIERMANN, et al.,
Defendants.

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13-CV-3326

MERIT REVIEW OPINION
Plaintiff, proceeding pro se and detained in the Rushville
Treatment and Detention Center, seeks leave to proceed in forma
pauperis.
The "privilege to proceed without posting security for costs
and fees is reserved to the many truly impoverished litigants who,
within the District Court's sound discretion, would remain without
legal remedy if such privilege were not afforded to them." Brewster
v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972).
Additionally, a court must dismiss cases proceeding in forma
pauperis "at any time" if the action is frivolous, malicious, or fails to
state a claim, even if part of the filing fee has been paid. 28 U.S.C.
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§ 1915(d)(2). Accordingly, this Court grants leave to proceed in
forma pauperis only if the complaint states a federal claim.
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 (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. U.S., 721 F.3d 418, 422 (7th Cir. 2013)(quoted
cite omitted).
ALLEGATIONS
Plaintiff is civilly detained in the Rushville Treatment and
Detention Center pursuant to the Illinois Sexually Violent Persons
Commitment Act, 725 ILCS 207/1, et seq. On July 22, 2013,
Plaintiff went to the gym only to discover that training mats were
covering the area where Plaintiff had planned to shoot basketball.
The training mats had been used that morning for a staff training
exercise.
Plaintiff proceeded to move the mats out of the way,
whereupon Security Guard Seymore told Plaintiff to leave the mats
where they were and shoot hoops on the other side of the room.
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Plaintiff protested because other detainees were already using the
other side of the recreation room to lift weights. According to
Plaintiff, Seymore directed Plaintiff to use the other side of the room
or leave, and Plaintiff chose to leave.
A few days later, Plaintiff was written a disciplinary report for
disruptive conduct/disobeying a direct order/insolence arising from
the basketball incident. The report accused Plaintiff of arguing with
staff, cursing, accusing the guard of being racist, and refusing to
return to his room after a direct order.
Defendants Jumper, Roth, and Clark were the disciplinary
committee members who presided over Plaintiff’s disciplinary
hearing. Plaintiff denied behaving in a disruptive or disrespectful
manner. Plaintiff alleges that he was not allowed to offer
exonerating evidence to the committee such as witness statements
or video footage. Plaintiff allegedly asked Defendant Jumper to
recuse himself from the disciplinary committee because of Plaintiff’s
pending civil action against Jumper, but Jumper refused.
The disciplinary committee found Plaintiff guilty and punished
him with 30 days of “close” status, which entails the loss of certain
privileges and restrictions on movement. The committee also
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recommended that Plaintiff be required to wear the “black box”
restraint on transports outside the facility for 90 days. Additionally,
Defendant Jumper failed or refused to recommend that Plaintiff be
allowed to continue his sex offender treatment while Plaintiff served
his punishment. Plaintiff asked his therapists for permission to
continue his therapy but was only permitted to continue part of
that therapy while he served his punishment.
ANALYSIS
At this early stage, the Court cannot rule out a procedural due
process claim based on the alleged partial decisionmaker
(Defendant Jumper) and Plaintiff’s inability to present exonerating
evidence at the disciplinary hearing. See Wolff v. McDonnell, 418
U.S. 539, 564-65 (1974)(establishing procedural due process
protections in prison disciplinary proceedings, which protections
include an impartial decisionmaker and a meaningful opportunity
to defend against the charge).
A further developed record may show that the punishment
imposed on Plaintiff did not rise to a protected liberty interest, in
which case Plaintiff had no right to procedural due process. For
example, the Seventh Circuit has held that the imposition of “close”
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status at the Rushville Treatment and Detention Center does not
implicate a protected liberty interest, nor does the use of the black
box restraint during transport outside the facility. Miller v. Dobier,
634 F.3d 412, 414-15 (7th Cir. 2011). However, the Court is aware
from another pending case in this District that the term “close
status” may now entail more significant restrictions than those in
the Miller case. See Fields v. Clayton, 11-CV-3368 (C.D. Ill., Judge
Myerscough). The record needs development on the exact
deprivations Plaintiff suffered in order to determine whether
Plaintiff's constitutionally protected liberty interests were affected.
The procedural due process claim will therefore proceed against the
disciplinary committee members: Defendants Jumper, Roth, and
Clark.
Plaintiff also states an arguable claim against Defendant Jumper
for retaliating against Plaintiff for Plaintiff’s pending lawsuit against
Jumper, Carpenter v. Jumper, et al., 12-CV-3352 (C.D. Ill., Judge
Myerscough). Babcock v. White, 102 F.3d 267, 276 (7th Cir.
1996)(retaliation for exercising First Amendment right states a
constitutional claim). The alleged retaliation in this case appears to
be finding Plaintiff guilty without allowing him an opportunity to
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present evidence, imposing an atypically harsh punishment on
Plaintiff, and failing or refusing to recommend Plaintiff for
continued participation in group therapy while Plaintiff served out
his punishment.
The Court cannot discern a federal claim against the remaining
Defendants. Defendant Seymore allegedly wrote the false or
exaggerated disciplinary report against Plaintiff, but that does not
alone violate the Constitution. Plaintiff’s constitutional protection
against that kind of arbitrary action would be procedural due
process protections, provided a liberty interest was at stake. Leslie
v. Doyle, 125 F.3d 1132, 1136 (7th Cir. 1998)("Broadly speaking,
the Constitution does not create a cause of action for arbitrary and
purposeless acts by officials per se, . . . ; it prohibits the abuse of
power that effects a significant deprivation.")(citations omitted)).
Nor does a constitutional violation arise from the refusal of
Plaintiff’s therapists or the Facility Director to allow Plaintiff to
continue all of his therapy while Plaintiff served his punishment.
Even if a 30-day interruption in therapy implicates constitutional
liberty interests, deference would be due the professional judgment
of Plaintiff’s therapists. See Youngberg v. Romeo, 457 U.S. 307,
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323 (1982)(decisions by professionals working at mental health
institution are afforded deference and violate the Constitution only
if professional judgment not exercised). These individuals were not
involved in the disciplinary hearing; the only part these individuals
played was to determine whether Plaintiff’s therapy should be
suspended for 30 days in light of the disciplinary committee’s
findings. No plausible inference arises that this decision was a
substantial departure from accepted professional judgment. Sain v.
Wood, 512 F.3d 886, 894-95 (7th Cir. 2009).
IT IS ORDERED:
1.

Pursuant to a review of the Complaint, the Court finds

that Plaintiff states the following federal constitutional claims: 1) a
procedural due process claim against Defendants Jumper, Clark,
and Roth; and 2) a retaliation claim against Defendant Jumper.
This case proceeds solely on the claims identified in this paragraph.
Any additional claims shall not be included in the case, except at
the Court’s discretion on motion by a party for good cause shown or
pursuant to Federal Rule of Civil Procedure 15.

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2.

Defendants Biermann, Scott, Kunkel, Prezell, Kopeck,

Teleski, Stephans, Caraway, Lodge, Jelinek, Winters, Volke,
Seymore, and Liberty Health Care Corporation are dismissed.
3.

This case is now in the process of service. Plaintiff is

advised to wait until counsel has appeared for Defendants before
filing any motions, in order to give Defendants notice and an
opportunity to respond to those motions. Motions filed before
Defendants' counsel has filed an appearance will generally be
denied as premature. Plaintiff need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.
4.

The Court will attempt service on Defendants by sending

each Defendant a waiver of service. Defendants have 60 days from
the date the waiver of service is sent to file an Answer. If
Defendants have not filed Answers or appeared through counsel
within 90 days of the entry of this order, Plaintiff may file a motion
requesting the status of service. After counsel has appeared for
Defendants, the Court will enter a scheduling order setting
deadlines for discovery and dispositive motions.
5.

With respect to a Defendant who no longer works at the

address provided by Plaintiff, the entity for whom that Defendant
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worked while at that address shall provide to the Clerk said
Defendant's current work address, or, if not known, said
Defendant's forwarding address. This information shall be used
only for effectuating service. Documentation of forwarding
addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
6.

Defendants shall file an answer within 60 days of the day

the waiver of service is sent by the Clerk. A motion to dismiss is
not an answer. The answer should include all defenses appropriate
under the Federal Rules. The answer and subsequent pleadings
shall be to the issues and claims stated in this Opinion.
7.

Once counsel has appeared for a Defendant, Plaintiff need

not send copies of his filings to that Defendant or to that
Defendant's counsel. Instead, the Clerk will file Plaintiff's document
electronically and send a notice of electronic filing to defense
counsel. The notice of electronic filing shall constitute service on
Defendants pursuant to Local Rule 5.3. If electronic service on
Defendants is not available, Plaintiff will be notified and instructed
accordingly.

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8.

Counsel for Defendants is hereby granted leave to depose

Plaintiff at Plaintiff's place of confinement. Counsel for Defendants
shall arrange the time for the deposition.
9.

Plaintiff shall immediately notify the Court, in writing, of

any change in his mailing address and telephone number.
Plaintiff's failure to notify the Court of a change in mailing address
or phone number will result in dismissal of this lawsuit, with
prejudice.
10.

If a Defendant fails to sign and return a waiver of service

to the clerk within 30 days after the waiver is sent, the Court will
take appropriate steps to effect formal service through the U.S.
Marshal's service on that Defendant and will require that Defendant
to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).
11. The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
12. The Clerk is directed to attempt service on Defendants
pursuant to the standard procedures.

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13. The Clerk is directed to terminate Defendants Biermann,
Scott, Kunkel, Prezell, Kopeck, Teleski, Stephans, Caraway,
Lodge, Jelinek, Winters, Volke, Seymore, and Liberty Health
Care Corporation.
ENTERED: January 22, 2014
FOR THE COURT:
s/Colin Stirling Bruce
COLIN STIRLING BRUCE
UNITED STATES DISTRICT JUDGE

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