Battle v. Johnson et al
Filing
12
MERIT REVIEW OPINION: Plaintiff's motion for the appointment of pro bono counsel is denied 5 , with leave to renew after Plaintiff demonstrates that he has made reasonable efforts to find counsel on his own. Plaintiff's motion for leave to file an amended complaint is granted 7 . Plaintiff's motions regarding summons and subpoenas are denied as unnecessary and premature ( 8 , 9 ). Plaintiff's complaint is dismissed without prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915A. Plaintiff may file an amended complaint by March 24, 2017. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 3/8/2017. (GL, ilcd)
E-FILED
Wednesday, 08 March, 2017 09:25:00 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
JOVAN MIGUEL BATTLE,
Plaintiff,
v.
OFFICER T. JOHNSON, et al.,
et al.
Defendants.
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16-CV-4260
MERIT REVIEW OPINION
Plaintiff filed this case pro se from East Moline Correctional
Center. Plaintiff’s amended complaint is before the Court for a
merit review pursuant to 28 U.S.C. § 1915A.1 This statute requires
the Court to review a complaint filed by a prisoner to identify the
cognizable claims and to dismiss part or all of the complaint if no
claim is stated.
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,
1
A prisoner who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can
no longer proceed in forma pauperis (without prepaying the filing fee in full) unless the prisoner is under
“imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
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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).
Plaintiff alleges that he was written a false disciplinary report
for insolence and disobeying a direct order on November 16, 2016.
The disciplinary committee allegedly found him guilty, refusing to
consider Plaintiff’s contention that a video recording of the incident
exonerated him. Plaintiff is allegedly still waiting to receive a copy
of the disciplinary committee’s findings.
Plaintiff also appears to challenge seven other disciplinary
decisions which he attaches to his amended complaint, on what
grounds is not clear. Plaintiff appears to assert that no
investigation was done and that the Warden does not sign her name
to the decision because the signatures look different. Plaintiff
alleges that because he has received three disciplinary tickets, he
has lost his “school good time contract” and the ability to take “ABE
PRE-GED” classes, which the Court assumes are classes that will
help Plaintiff prepare to obtain a General Education Degree.
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Plaintiff’s constitutional protection against false disciplinary
reports is procedural due process—advance notice of the charge, a
meaningful opportunity to defend the charge, a statement of
reasons for the disciplinary committee’s findings, and some
evidence to support those findings. Piggie v. Cotton, 344 F.3d 674,
677 (7th Cir.2003).
However, these procedural due process protections are not
required if the punishment Plaintiff received was insignificant from
a constitutional perspective. Thielman v. Leean, 282 F.3d 478, 484
(7th Cir. 2002)(citing Sandin v. Conner, 515 U.S. 472, 487 (1995);
see also 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.")(emphasis in original) (citations omitted)). For
example, a demotion in grade or short term, typical segregation is
generally not a significant enough punishment to trigger procedural
due process protections. Marion v. Columbia Correctional Inst.,
559 F.3d 693, 697-98 (7th Cir. 2009); Hoskins v. Lenear, 395 F.3d
372, 374-75 (7th Cir. 2005). The revocation of good time is a
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serious enough deprivation, but that legal challenge can be made in
federal court only through a habeas action, after exhausting state
court remedies. Edwards v. Balisok, 520 U.S. 641, 648 (1997).
Plaintiff does not say what punishment he received on the
November 16, 2016 ticket, so the Court cannot determine whether
he states a procedural due process claim that may proceed on that
ticket. Additionally, Plaintiff appears to admit in his original
complaint that he did not exhaust his administrative remedies
before filing this lawsuit. Plaintiff must exhaust his administrative
remedies before filing this lawsuit, not after filing the lawsuit. Ford
v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Exhaustion means
timing filing a grievance and pursuing all available appeals in a
timely manner, including appealing to the Administrative Review
Board. If Plaintiff did not exhaust his administrative remedies
before filing this lawsuit, the lawsuit must be dismissed upon
motion by Defendants.
The punishments Plaintiff received from the disciplinary
committee on the other tickets were not serious enough to trigger
procedural due process protections. The most serious punishments
were two separate 30-day stints in segregation, which is generally
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too short a term to trigger procedural due process protections
unless the conditions in segregation were unusually harsh, harsher
than typical segregation. See Means v. Larson, 580 Fed.Appx. 481
(7th Cir. 2014)(not published in Federal Reporter)( “[wrongful]
segregation term of just over one month, by itself, did not implicate
a liberty interest.”). The other punishments—7, 14 and 21 days
“unit restriction,” 14 days commissary restriction, and 25 days of
commissary restriction—are even less significant punishments than
segregation. Additionally, Plaintiff has no protected constitutional
right to attend classes in prison, so taking away that privilege does
not trigger procedural due process protections. See Garza v. Miller,
688 F.2d 480, 485 (7th Cir. 1982)(inmate has no constitutional
interest in educational or job opportunities); Meisberger v. Cotton,
181 Fed. Appx. 599 (7th Cir. 2006)(no procedural due process due
for transfer and resulting lack of educational opportunities and
opportunity to earn good time). The Warden’s alleged failure to
investigate does not violate the Constitution. See Polzin v. Mutter,
2013 WL 485269 (7th Cir. 2013)(unpublished)(There is no
constitutional duty to "search for, or assist a defendant in
developing, mitigating evidence.") Additionally, that the Warden’s
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signature looks different on different documents does not suggest
that any federal law has been broken.
Plaintiff will be given an opportunity to file an amended
complaint if he believes he can allege facts that state a plausible
federal claim. If Plaintiff does not do so, or his amended complaint
still fails to state a claim, then this case will be dismissed for failure
to state a claim, which will count as one of Plaintiff’s strikes under
28 U.S.C. § 1915(g).
IT IS ORDERED:
1)
Plaintiff’s motion for the appointment of pro bono counsel
is denied (5), with leave to renew after Plaintiff demonstrates that he
has made reasonable efforts to find counsel on his own. Pruitt v.
Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). This typically requires
writing to several lawyers and attaching the responses. If Plaintiff
renews his motion, he should set forth how far he has gone in
school, any jobs he has held inside and outside of prison, any
classes he has taken in prison, and any prior litigation experience
he has.
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2)
Plaintiff’s motion for leave to file an amended complaint
is granted (7). The Court has conducted the merit review on the
amended complaint, not the original complaint.
3)
Plaintiff’s motions regarding summons and subpoenas
are denied as unnecessary and premature (8, 9). If this case
survives merit review, the Court will order service. Discovery does
not start until after Defendants have appeared through counsel.
4)
Plaintiff's complaint is dismissed without prejudice for
failure to state a claim pursuant to 28 U.S.C. § 1915A.
5) Plaintiff may file an amended complaint by March 24,
2017. If Plaintiff does not file an amended complaint or Plaintiff’s
amended complaint still fails to state a claim, then this action will
be dismissed for failure to state a claim and a strike will be
assessed against Plaintiff pursuant to 28 U.S.C. 1915(g). If Plaintiff
files an amended complaint, the amended complaint will replace the
original complaint. Piecemeal amendments are not permitted.
ENTERED: March 8, 2017
FOR THE COURT:
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s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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