Austin v. Garcia et al

Filing 87

MEMORANDUM Opinion and Order signed by the Honorable Harry D. Leinenweber on 6/21/2011. Mailed notice (tlm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ALAN AUSTIN (K-71358),
Plaintiff,

Case No. 09 C 1829

v.
Hon. Harry D. Leinenweber
CLEO JOHNSON,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff,

Allan

Austin

(the

“Plaintiff”),

an

inmate

at

Stateville Correctional Center, filed this 42 U.S.C. § 1983 action
against Cleo Johnson (the “Defendant”), a disciplinary hearing
officer

at

Stateville.

Plaintiff

contends

that

Defendant

retaliated against him and violated his procedural due process
right to fair disciplinary hearings when she presided over two
hearings after Plaintiff had requested that she recuse herself.
Plaintiff contends that Defendant was biased against him because he
had previously filed a lawsuit against her, which was still pending
at the time of the disciplinary hearings.

Plaintiff also named as

Defendants Tammy Garcia, a grievance officer at Stateville, and
Melody Ford, an Illinois Department of Corrections Administrative
Review Board member.
Plaintiff’s

Complaint

On October 23, 2009, the Court dismissed
because

he

had

not

responded

to

the

Defendants’ Motion for a more definite statement and because it

appeared to the Court, upon further review of the Complaint, that
Plaintiff had not stated a valid claim.

(R. 27.)

Plaintiff filed

a Motion for Reconsideration, then a Notice of Appeal, and later,
upon this Court’s request, a Motion to Reinstate with a more
definite statement.

(R. 30, 31, 42, 43.)

While his appellate case

was pending, this Court notified the Appellate Court that this
Court would grant the Motion to Reconsider and to Reinstate this
case for the claim against Johnson, but not the other Defendants.
(R. 45.)

Following the Appellate Court’s remand, this Court

reinstated the case with respect to the claim against Johnson, who
is the only Defendant remaining in this case. (R. 55.)

Defendant

has now filed a Motion for Summary Judgment and Plaintiff has
responded. For the following reasons, the court grants Defendant’s
Motion for Summary Judgment.
I.
Summary

judgment

STANDARD OF REVIEW
is

appropriate

“if

the

pleadings,

the

discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”

FED . R. CIV .

P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).

In determining the existence of a genuine issue of

material fact, the court construes all facts in a light most
favorable

to

the

non-moving

party

and

draws

all

reasonable

inferences in that party’s favor. Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 255 (1986).

“The evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his
favor.”

Id. at 255.

If the moving party meets its burden of showing that there are
no issues of material fact and that he is entitled to a judgment as
a mater of law, the non-moving party must “go beyond the pleadings
and affirmatively demonstrate, by specific factual allegations,
that there is a genuine issue of material fact.”

Borello v.

Allison, 446 F.3d 742, 748 (7th Cir. 2006) (internal quotation
marks and citations omitted); Celotex, 477 U.S. at 322-26.

A

genuine issue of material fact is not demonstrated by the mere
existence of “some alleged factual dispute between the parties,”
Anderson, 477 U.S. at 247, or by “some metaphysical doubt as to the
material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986).

Rather, a genuine issue of

material fact exists only if a reasonable finder of fact could
return a decision for the nonmoving party based upon the record.
See Anderson, 477 U.S. at 252; Insolia v. Phillip Morris Inc., 216
F.3d 596, 598-99 (7th Cir. 2000).
When addressing a summary judgment motion, the Court derives
the background facts from the parties' Local Rule 56.1 Statements,
which assist the court by “organizing the evidence, identifying
undisputed

facts,

and

demonstrating

precisely

how

each

side

propose[s] to prove a disputed fact with admissible evidence.”
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Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th
Cir. 2000).

Because Plaintiff is proceeding pro se, Defendant

served him with a “Notice to Pro Se Litigant Opposing Motion for
Summary Judgment” as required by N.D. Ill. Local Rule 56.2.
(R. 77, Def. Rule 56.1 Statement at 1.)

The notice explains the

consequences of failing to properly respond to a motion for summary
judgment and to the factual statements in the movant’s Local
Rule 56.1 Statement.

(Id.)

A litigant’s failure to respond to a

statement of fact in a Local Rule 56.1 Statement results in the
court considering the uncontroverted statement admitted.
v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006).

Raymond
The court

may also disregard responses that do not properly cite to the
record or that offer only evasive denials.

Cichon v. Exelon

Generation Co., L/L.C., 401 F.3d 803, 809-10 (7th Cir. 2005);
Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997).
In the present case, Defendant filed a Rule 56.1 Statement and
provided notice to Plaintiff of his need to respond.

(R. 77.)

Plaintiff responded to the summary judgment motion, (R. 82), and
has submitted affidavits and supplemental facts supporting his
response.

(R.

81,

82.)

However,

Defendant’s Rule 56.1 Statement.

he

has

not

responded

to

The court may thus consider

Defendant’s assertions of fact in her Rule 56.1 Statement, to the
extent they are supported in the record, to be admitted.

Raymond,

442 F.3d at 608. Plaintiff’s submissions, including the affidavits
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and his response to the summary judgment motion, will also be
considered.

(R. 81-83.)

With these standards in mind, the court

considers the evidence of this case.
II.

FACTS

The current § 1983 action alleges that Defendant retaliated
against Plaintiff by not recusing herself from presiding over two
prison disciplinary hearings, which Plaintiff had requested because
Defendant had been named as a defendant in a prior § 1983 suit
filed by Plaintiff.
Plaintiff

is

Correctional Center.

The facts of this case are as follows.
an

inmate

incarcerated

at

the

Stateville

Defendant is an Adjustment Committee Member

at Stateville and presides over disciplinary hearings at the
facility.

(See R. 77, Def. Rule 56.1 Statement, ¶ 2.)

In August

2007, prior to this suit, Plaintiff filed an § 1983 action against
Defendant, alleging that a disciplinary charge against Plaintiff
should have been expunged.

(Id. at ¶ 5, citing Austin v. Johnson,

No. 07 C 4389 (N.D. Ill.).)

This court dismissed that complaint on

initial review upon determining that Plaintiff had not stated a
federal claim.

(R. 77, Def. Rule 56.1 Statement, ¶ 6; see also

Austin, No. 07 C 4389 (N.D. Ill.) (Order of Sept. 18, 2007)
(Leinenweber, J.).)

Because of the dismissal on initial review,

summons for service of the complaint on Defendant did not issue in
that case, and Defendant was never served with that complaint.
(See generally Austin, No. 07 C 4389).
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Plaintiff sought to appeal

this court’s dismissal order.

But, the appeal was dismissed when

Plaintiff did not qualify to proceed in forma pauperis and he was
unable to pay the appellate filing fee.

(Id. at Doc.

#16, 21.)

Given that Plaintiff’s prior suit was never served upon Defendant
and that there was no briefing on appeal, it is unclear whether
Defendant ever knew about Plaintiff’s 2007 suit prior to Plaintiff
telling her at his disciplinary hearings.
On October 20, 2007, Plaintiff was issued a disciplinary
ticket for “Arson” when he started a fire in his cell to cook food.
(R. 77, Def. Rule 56.1 Statement, ¶ 7; see also Exh. D (copy of
Adjustment Committee Report).) A hearing on the charge was held on
October 23, 2007.

(R. 77 at ¶ 8; Exh. D.)

At the hearing,

Plaintiff told Defendant that she should not be there because he
had filed a suit against her.

(R. 77, Def. Rule 56.1 Statement,

¶ 9, citing Exh. A, Pl.’s Depo. at 20.)
did not know about a lawsuit.

Defendant replied that she

(R. 77, Def. Rule 56.1 Statement,

¶ 10, citing Pl.’s Depo. at 20.)

According to Plaintiff, nothing

more happened with respect to his comment that Defendant should not
be at the hearing and the hearing continued.
Depo. at 20.)

(R. 77, Exh. A, Pl.’s

Defendant and Officer Cynthia Smith presided over

the hearing and found Plaintiff guilty of the charged offense.
Plaintiff was sentenced to three months demotion to C grade, three
months segregation, three months commissary restriction, and the
revocation of three months of good credit conduct.

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(R. 77, Def.

Rule 56.1 Statement, ¶ 11; see also Exh. D, copy of Adjustment
Committee Final Summary Report.) Neither the disciplinary decision
nor the penalties were expunged. (R. 77, Def. Rule 56.1 Statement,
¶ 12, citing Exh. A, Pl.’s Depo. at 23.)
On December 28, 2007, a disciplinary ticket was issued against
Plaintiff for sexual misconduct and disobeying a direct order.
(R.

77,

Def.

Rule

56.1

Statement

¶

13.)

According

to

the

Adjustment Committee Report, Plaintiff called an officer’s name
while she was conducting a count of inmates.

When the officer

looked toward Plaintiff’s cell, she saw him standing in the doorway
of his cell masturbating.

The officer ordered Plaintiff to stop,

but he continued.

(R. 77, Exh. E, copy of 1/10/08Adjustment

Committee Report.)

At the January 10, 2008, hearing on the

disciplinary ticket, Defendant again presided.

(R. 77, Exh. E.)

Plaintiff again told Defendant that she should not preside over the
hearing because he had a lawsuit pending against her.
Exh. A, Pl. Depo. at 21-22.)

(R. 77,

Plaintiff states that he told

Defendant that “I know that I have been retaliated against . . .
because you gave [other] persons 60 days and gave me 90 days [for
the prior disciplinary offense of cooking].”

(Id. at 22.)

According to Plaintiff, Defendant did not respond, except to say
that she could still hear Plaintiff’s disciplinary ticket. (Id. at
22-23.)
found

Defendant and Officer David Mansfield heard the charge,

Plaintiff

guilty,

and

imposed

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penalties

of

six

months

demotion to C grade, six months of segregation, and the revocation
of three months of good conduct credit.

(R. 77, Def. Rule 56.1

Statement, ¶ 17; see also Exh. E, copy of January 10, 2008,
Adjustment Committee Report.) Neither the disciplinary finding nor
Plaintiff’s penalties were expunged.

(R. 77, Def. Rule 56.1

Statement, ¶ 18, citing Exh. A, Pl. Depo. at 23.)
Plaintiff has submitted an affidavit from another inmate,
Daniel Cortes, who states that he was disciplined for cooking in
his cell and that Defendant imposed only 60 days of segregation as
the penalty. (R. 81, Pl. Motion to Submit Evidence.)
III.

DISCUSSION

Plaintiff seeks money damages for Defendant’s alleged bias
with her presiding over two disciplinary hearings and her alleged
retaliation with imposing a penalty greater than usual following
one hearing.

Both disciplinary hearings resulted penalties that

included the loss of good conduct credit.

A favorable ruling in

this court on Plaintiff’s complaint would call into question the
validity of the disciplinary decisions and the duration of his
sentence, which prevents him from seeking § 1983 relief until the
disciplinary decisions are found to be invalid by another way.
A § 1983 action that would undermine the validity of a prison
disciplinary

decision

which

directly

affects

the

length

of

confinement cannot proceed until the prisoner has “achieve[d]
favorable

termination of his available state, or federal habeas,

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opportunities to challenge the underlying [disciplinary] conviction
or sentence.”

Muhammad v. Close, 540 U.S. 749, 751 (2004); see

also Edwards v. Balisok, 520 U.S. 641, 646-48 (1997).

The rule for

prison disciplinary decisions follows the rule for § 1983 suits
that involve constitutional challenges to conduct associated with
a criminal conviction.

“When a state prisoner seeks damages in a

§ 1983 suit, the district court must consider whether a judgement
in favor of the plaintiff would necessarily imply the invalidity of
his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate the conviction or
sentence has already been invalidated.” Heck v. Humphrey, 512 U.S.
477, 487 (1994).

In Edwards, the Supreme Court extended the rule

in Heck to § 1983 challenges to a prison disciplinary decision
where the penalty includes revocation of good conduct credit.
Because

such

a

penalty

affects

the

duration

of

an

inmate’s

sentence, “a claim for declaratory relief and money damages, based
on allegations of deceit and bias on the part of the decisionmaker
that necessarily imply the invalidity of the punishment imposed, is
not cognizable under § 1983.”

Edwards, 520 U.S. at 648.

Plaintiff’s § 1983 action challenges Defendant’s presiding
over two disciplinary hearings that resulted in the revocation of
good conduct credit.

A favorable ruling by this court in this case

would necessarily call into question the validity of the revoked
credits.

Before

seeking

damages,
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Plaintiff

must

have

the

disciplinary decisions, or at least their penalties, vacated or
otherwise declared invalid by some other means.

Illinois courts

have recognized mandamus as the proper remedy to compel prison
officials to award sentence credit to a prisoner.

See Rice v.

Hathaway, No. 07-CV-48, 2008 WL 2789317, *2 (S.D.Ill. July 18,
2008) (Reagan, J.) (citing Turner-El v. West, 349 Ill.App.3d 475,
811 N.E.2d 728, 733 (Ill. App. 2004)).

“The State of Illinois must

first be afforded an opportunity, in a mandamus action pursuant to
735 ILCS 5/14-101 et seq., to consider the merits of Plaintiff's
claim.”

Rice, 2008 WL 2789317, *2.

Plaintiff states that he is not challenging the penalties of
his disciplinary hearings, and that he is not seeking to restore
the good conduct credit that was lost.
challenge

Defendant’s conduct,

Rather, he seeks to

which prevented

Plaintiff

from

receiving fair hearings. (R. 83, Pl. Supplement to his Response at
2.) The fact that Plaintiff does not seek reversal of disciplinary
sentences, however, does not change the applicability of Edwards
and Heck.
case

Like Plaintiff, the inmate’s challenge in the Edwards

focused

proceeding,

on

not

the
the

constitutionality

penalty

imposed.

of

the

Such

a

disciplinary
challenge,

if

successful, however, undermines the validity of the penalty, which
must be invalidated through another avenue.
646-48.

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Edwards, 520 U.S. at

For the reasons stated above, this court cannot address
whether Plaintiff was deprived of fair disciplinary hearings or
retaliated

against

him

until

the

disciplinary

declared invalid by some other means.

decisions

are

Plaintiff may file his

§ 1983 claims after the disciplinary penalties have been vacated or
declared invalid.

Accordingly, because this court cannot address

Plaintiff’s § 1983 claims. Defendant’s motion for summary judgment
is granted.
seeking

§

This case is dismissed without prejudice to Plaintiff
1983

relief

if

and

when

he

is

able

to

have

the

disciplinary decisions that are the subject of this case declared
invalid.
IV.

CONCLUSION

For the reasons stated herein, Defendant’s Motion for Summary
Judgment [76] is granted.

Plaintiff’s Motion to Submit Evidence

[81] is granted to the extent that the evidence is considered part
of his response to the summary judgment motion.

This case is

dismissed without prejudice to Plaintiff seeking 42 U.S.C. § 1983
relief if his disciplinary decisions that are the subject of this
case are vacated or otherwise declared invalid.

This case is

terminated.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE: 6/21/2011
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