Cundiff v. Hayes et al
MERIT REVIEW OPINION: Plaintiff's complaint is dismissed for failure to state a claim. By February 12, 2018, Plaintiff may file an amended complaint. Failure to file an amended complaint, or filing an amended complaint that still fails to state a federal claim, will result in the dismissal of this case, without prejudice. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 1/8/2018. (MJC, ilcd)
Monday, 08 January, 2018 11:46:00 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
LARRY L. CUNDIFF,
MS. ROSEMARY HAYES,
MERIT REVIEW OPINION
Plaintiff, proceeding pro se and detained in the Rushville
Treatment and Detention Center, seeks leave to proceed in forma
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
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.
Plaintiff alleges that he was disciplined for sexually acting out
with other residents on three different occasions while working in
the dietary unit on September 5, 2017. At Plaintiff’s disciplinary
hearing (called a behavior committee meeting), Plaintiff denied the
accusations, instead asserting that he had actually been sexually
assaulted by these residents. The committee nevertheless found
Plaintiff guilty and dropped Plaintiff’s privilege status to B, which
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presumably means fewer privileges and more restrictions. As the
basis for its conclusion, the committee referenced the investigator’s
report of the investigator’s interview of Plaintiff, the incident report,
and the resident’s account. Which resident’s account was not
stated by the committee, but the committee indicated that Plaintiff
had originally admitted the conduct, though Plaintiff denies this.
Plaintiff does not give details of the assaults, but his allegations
suggest that the assaults involved grabbing Plaintiff’s penis.
(Compl. ¶ 8.)
Plaintiff took steps to try to initiate criminal charges against
the residents who had assaulted him. Plaintiff was then moved to a
different cell and placed on “escort status” for his own protection.
Plaintiff does not explain what escort status is—the Court presumes
that escort status means that Plaintiff needed an employee to escort
Plaintiff when he left his housing unit.
Plaintiff then decided to stop pursuing criminal charges
because the investigator told him that the incident would be seen as
consensual and that proving assault would be difficult because it
came down to Plaintiff’s word against the residents’ word. Plaintiff
remained on escort status into November, which meant that he
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could not be assigned certain tasks, or jobs, off of Plaintiff’s housing
unit. Plaintiff was removed from his job taking care of the hall
floors because of his escort status. Plaintiff filed a grievance,
asserting that he was no longer on escort status, but the staff
disagreed and instructed Plaintiff to contact his treatment team for
review of his escort status. Whether Plaintiff is still on escort status
The Court cannot discern a possible violation of federal law
from these allegations. Plaintiff disagrees with the decisions made,
but courts must give deference to those decisions absent some
constitutional violation or other violation of federal law.
Plaintiff does not say what privileges/restrictions he had on B
status, but the Seventh Circuit Court of Appeals has held that
placement in “close” status alone does not suggest a constitutional
violation. Miller v. Dobier, 634 F.3d 412, 415 (7th Cir. 2011)(“Even
when Miller was in “close” status, he was free to leave his cell for
most of the day, to receive visitors, and in this and other respects to
avoid extremes of close confinement such as are encountered in
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segregation units.”) The Court’s understanding from prior cases is
that close status is more restrictive than B status.
Even if B status were restrictive enough to trigger procedural
due process protections, the documents attached to the complaint
appear to show that Plaintiff did receive due process. Wolff v.
McDonnell, 418 U.S. 539, 563–64 (1974)(procedural due process
means advance written notice of charge, an opportunity to present
evidence, an impartial decisionmaker, a statement of reasons for
decision, and some evidence to support that decision). Plaintiff may
disagree with the decision, but that is not enough to state a federal
Nor does Plaintiff’s placement on escort status give rise to a
constitutional claim. The escort status might have been in place
longer than Plaintiff thought necessary, but that is a decision left to
the discretion of Plaintiff’s treatment team or security staff. See
Youngberg v. Romeo, 457 U.S. 307, 323 (1982)(decisions by
professionals working at mental health institution are afforded
deference and violate the Constitution only if professional judgment
not exercised). Further, Plaintiff has no constitutional right to an
off-unit job in the facility, or, generally, to a job at all. See Wallace
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v. Robinson, 940 F.2d 243, 248 (7th Cir. 1991)(prisoner has no
constitutional right to particular job assignment); Garza v. Miller,
688 F.2d 480, 485 (7th Cir. 1982)(inmate has no constitutional
interest in educational or job opportunities). If having a job at the
facility is required for progress in treatment, a claim might be stated
if Plaintiff were prevented from obtaining any job, but Plaintiff does
not make that allegation. Hughes v. Farris, 809 F.3d 330, 334 (7th
If Plaintiff is contesting the handling of his accusations of
sexual assault, he does not explain how that handling was wrong.
An investigation was conducted, and Plaintiff was moved to a
different cell and placed on escort status for his own protection.
For these reasons, the Court concludes that Plaintiff’s present
allegations do not state a federal claim. However, Plaintiff will be
given an opportunity to file an amended complaint. Tate v. SCR
Medical Transp., 809 F.3d 343, 346 (7th Cir. 2015)(litigants should
be given opportunity to amend).
IT IS ORDERED:
1. Plaintiff's complaint is dismissed for failure to state a claim.
By February 12, 2018, Plaintiff may file an amended
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complaint. Failure to file an amended complaint, or filing an
amended complaint that still fails to state a federal claim, will
result in the dismissal of this case, without prejudice.
ENTERED: January 8, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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