Fisher v. Randle et al

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATIONS 36 in its entirety; Granting 31 MOTION for Judgment on the Pleadings filed by Brett A Klindworth, Carol A McBride. Clerk of Court to enter judgment accordingly. Magistrate Judge Philip M. Frazier referral terminated. Signed by Judge J. Phil Gilbert on 10/24/11. (bkl)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DONNIE FISHER,
Plaintiff,
v.

Case No. 10-cv-610-JPG-PMF

MICHAEL P. RANDLE, GREGORY SCHWARTZ,
SHERRY BENTON, KATHREEN DEEN, BRETT A.
KLINDWORTH, HILL, B. PICKERY, W. HARRIS,
EDWARDS, DAVID ALVIS, and CAROL A.
MCBRIDE,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
36) of Magistrate Judge Philip M. Frazier recommending that the Court grant the motion for
judgment on the pleadings filed by defendants Klindworth and McBride (Doc. 31). Plaintiff
Donnie Fisher has objected to the Report (Doc. 41), and Klindworth and McBride have
responded to that objection (Doc. 42).
I.

Report and Recommendation Review Standard
The Court may accept, reject or modify, in whole or in part, the findings or

recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are
made. Id. “If no objection or only partial objection is made, the district court judge reviews
those unobjected portions for clear error.” Johnson v. Zema Systems Corp., 170 F.3d 734, 739
(7th Cir. 1999).
II.

The Report
This case arose after Fisher, an inmate at Pinckneyville Correctional Center at all

relevant times, was accused of violating a prison rule in August 2009. Klindworth and McBride
served on the adjustment committee that found Fisher violated the rule and recommended
disciplinary action against Fisher – a 2-month grade decrease and a 2-month term in the
disciplinary segregation unit. Fisher brought this action under 42 U.S.C. § 1983 for violation of
his due process rights under the Fourteenth Amendment.
The Report finds that the pleadings do not show a procedural due process violation
because the defendants did not impose sanctions on Fisher that deprived him of a liberty or
property interest. The sanctions did not constitute an “atypical and significant hardship” in
relation to the ordinary incidents of his prison life. Sandin v. Conner, 515 U.S. 472, 486 (1995).
The Report further finds that the pleadings do not show a substantive due process violation
because the defendants did not deprive Fisher of a fundamental liberty interest. Idris v. City of
Chi., 552 F.3d 564, 565-66 (7th Cir. 2009).
III.

Fisher’s Objection
Fisher argues that the complaint contains allegations that the defendants “arbitrarily

facilitated various disciplinary measures against him for having committed major infractions of
the Illinois Department of Correction(s)” rules without applying the Illinois Department of
Corrections’ procedural rules. The defendants criticize Fisher’s objection for failing to specify
to what part of the Report he objects.
Fisher’s objection misses the mark. Even if the defendants were procedurally deficient in
the disciplinary process, the disciplinary action they imposed did not deprive him of an interest
protected by the Due Process Clause of the Fourteenth Amendment. Unless a plaintiff has been
deprived of a protected interest, he has no procedural due process claim. See Polenz v. Parrott,
883 F.2d 551, 555 (7th Cir. 1989) (“To satisfy the second element in a § 1983 action based on
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due process, the plaintiff must demonstrate . . . that the claimed interest is a protected property or
liberty interest under the fourteenth amendment. . . .”). As for his substantive due process claim,
Fisher has not claimed the loss of any fundamental interest, see Idris, 552 F.3d at 565-66, or any
arbitrary government action that “is conscious shocking, in a constitutional sense,” see County of
Sacramento v. Lewis, 523 U.S. 833, 847 (1998).
IV.

Conclusion
For the foregoing reasons, the Court:

•

ADOPTS the Report (Doc. 36) in its entirety;

•

GRANTS Klindworth’s and McBride’s motion for judgment on the pleadings (Doc. 31);
and

•

DIRECTS the Clerk of Court to enter judgment accordingly.

IT IS SO ORDERED.
DATED: October 24, 2011
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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