Harris v. Ryker et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson, Granting 8 MOTION For Service of Process at Government Expense filed by Larry G Harris, Denying 7 MOTION to Sever filed by Larry G Harris, Denying 6 MOTION for Hearing filed by Larry G Harris. COUNT One survives threshold review and shall receive further consideration. Counts Two, Three, and Five fail to state a claim upon which relief can be granted and are DISMISSED with prejudice. Count Four is DISMISSED because the State pr ovides an adequate remedy, and therefore Plaintiff has no civil rights claim. The Clerk of the Court is DIRECTED to (1) issue summons to Defendants Ryker, Hodge, Campanella, Gaetz, Wadkins, Klindworth, McBride, Bradley, Runyun, Allen, Bowerman, Willi ams, Swartz, and Hughes, (2) prepare, on Plaintiffs behalf, a form USM- 285 for each Defendant, and (3) deliver service packets for each defendant, consisting of the completed summons, a USM-285 form, a copy of the complaint, and a copy of this Memorandum and Order. Signed by Judge G. Patrick Murphy on 8/23/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

LARRY G. HARRIS, #N-57672
Plaintiff,
vs.
WARDEN RYKER,
WARDEN HODGE,
WARDEN CAMPANELLA,
DONALD GAETZ,
TERRY G. WADKINS,
BRETT A. KLINDWORTH,
CAROL McBRIDE
LT. RUNYUN,
DANNY ALLEN,
RICHARD A. BOWERMAN,
LT. BRADLEY,
LT. WILLIAMS,
WARDEN SWARTZ
BARNEY HUGHES,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL NO. 11-648-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff, Mr. Larry G. Harris, currently an inmate incarcerated at Lawrence Correctional
Center (“Lawrence”), was at some times relevant to this action housed in the Pinckneyville
Correctional Center (“Pinkneyville”). This case initially came before the Honorable Michael J.
Reagan pursuant to 28 U.S.C. § 1915A in case 3:10-cv-596-MJR. Judge Reagan’s Threshold Order
articulated all of Plaintiff’s respective claims, but severed several counts because they did not arise
from the same transaction or occurrence as the first two counts. See Larry G. Harris v. Warden

Page 1 of 7

Ryker, et al., S.D. Ill., Civil Case No.10-596-MJR (Doc. 17). Accordingly, the severed counts now
come before this Court pursuant to 28 U.S.C. § 1915A for threshold review.
The Court finds it unnecessary to restate the facts here in this Threshold Order. The relevant
facts can be found in this case’s docket at Document 3, pages 2-4. The Court will proceed directly
with its analysis of Plaintiff’s claims.
In Count One, Plaintiff alleges that all the actions that occurred after he filed his July 31,
2009 grievance were taken against him in an effort to retaliate. These actions include due process
violations, transfer to Lawrence, deprivation of property, and failure to protect. Plaintiff claims that
Defendants Ryker, Hodge, Campanella, Gaetz, Wadkins, Klindworth, McBride, Bradley, Runyun,
Allen, Bowerman, Williams, Swartz, and Hughes all conspired to retaliate against him for filing the
grievance. “[A]n act in retaliation for the exercise of a constitutionally protected right is actionable
under Section 1983 even if the act, when taken for different reasons, would have been proper."
Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009) (discussing Howland v. Kilquist, 833 F.2d
639, 644 (7th Cir. 1987). Accordingly, Plaintiff has articulated a colorable federal claim for
retaliation in violation of Plaintiff’s First Amendment right to use the prison grievance system. See
Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012).
Count two is a procedural due process claim against Defendants Klindworth and McBride.
According to Plaintiff, on two separate occasions, Defendants failed to provide him with a fair and
impartial disciplinary hearing. Plaintiff fails to elaborate on how the hearing was unfair or biased.
As a result, Plaintiff was sent to an unspecified amount of time in segregation. In general, prison
disciplinary hearings satisfy procedural due process if the prisoner received advance written notice
of the charge, right to appear before the hearing panel, the right to call witnesses if prison safety

Page 2 of 7

allows, and a written statement of the reasons for the discipline imposed. See Wolff v. McDonnell,
418 U.S. 539, 563-69 (1974); Cain v. Lane, 857 F.2d 1139, 1145 (7th Cir. 1988). Here, Plaintiff’s
allegation that he did not receive a fair and impartial hearing seems to be a dissatisfaction with the
outcome of the hearing. Plaintiff’s allegations are insufficient to state a claim for relief. The Court
cannot simply “accept as adequate abstract recitations of the elements of a cause of action or
conclusory legal statements.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). This claim against
Defendants Klindworth and McBride is dismissed with prejudice.
Count three is Plaintiff’s claim that a transfer from Pinkneyville to Lawrence impinged
Plaintiff’s constitutional rights because Lawrence is a “punishment prison.” Plaintiff directs this
claim against Defendant Swartz.

“[P]risoners possess neither liberty nor property in their

classifications and prison assignments. States may move their charges to any prison in the system.”
DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th Cir. 1992) (citing Montanye v. Haymes, 427 U.S.
236 (1976)). See also Meachum v. Fano, 427 U.S. 215, 224 (1976) (the Constitution does not
guarantee placement in a particular prison). Certainly, it is true that “inmate[s] have a liberty
interest in avoiding placement in more restrictive conditions, such as segregation, when those
conditions pose an atypical and significant hardship when compared to the ordinary incidents of
prison life.” Townsend, 522 F.3d at 771. That is not what is at issue in this case. Here, both
Pinkneyville and Lawrence are level-two secure institutions. Plaintiff fails to plead facts that state
a claim for relief plausible on its face. This claim against Defendant Swartz is dismissed with
prejudice.
In Count Four, Plaintiff alleges that he was deprived of his property when Defendants
Bowerman and Williams ordered multiple shakedowns on his cell and confiscated his property. He

Page 3 of 7

was further deprived of his property when Plaintiff was sent to segregation at Lawrence and his
property was given to another individual.
To state a claim under the due process clause of the Fourteenth Amendment, Plaintiff must
assert a deprivation of liberty or property without due process of law; but if the state provides an
adequate remedy, Plaintiff has no civil rights claim. Hudson v. Palmer, 468 U.S. 517, 530-36 (1984)
(availability of damages remedy in state claims court is an adequate, post-deprivation remedy). The
Seventh Circuit has found that Illinois provides an adequate post-deprivation remedy in an action
for damages in the Illinois Court of Claims. Murdock v. Washington, 193 F.3d 510, 513 (7th Cir.
1999); Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir. 1993); 705 ILL. COMP. STAT. 505/8
(1995). This claim by Plaintiff against Bowerman and Williams is dismissed with prejudice. See
McGinnis, 5 F.3d at 1037 (“In sum, we hold that because the state of Illinois provides [plaintiff] with
an adequate postdeprivation remedy, [plaintiff’s] due process rights were not violated when
Stateville officers confiscated and destroyed his property in violation of IDOC regulations.”)
Finally, Count Five is Plaintiff’s failure to protect claim. According to Plaintiff, he was
given a cell-mate with known aggressive tendencies. Plaintiff told Defendants Runyun, Wadkins,
and Bradley that his cell-mate was a threat to him, but these Defendants refused to move Plaintiff
or the cell-mate to a different cell. Plaintiff was eventually assaulted by his cell-mate.
Not every harm caused by another inmate translates into constitutional liability for the
corrections officers responsible for the prisoner’s safety. Farmer v. Brennan, 511 U.S. 825, 834
(1994). To succeed on a failure to protect claim, Plaintiff must show he was incarcerated under
conditions posing a substantial risk of serious harm, and the defendants acted with “deliberate
indifference” to that danger. Id.; Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). A plaintiff

Page 4 of 7

also must prove prison officials were aware of a specific, impending and substantial threat to his
safety, often by showing that he complained to prison officials about a specific threat to his safety.
Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996).
Here, the communication between Plaintiff and Defendant fails to achieve the level of
specificity required to state a claim for failure to protect. Reports that your cell-mate is aggressive
and a threat is simply not enough. As such, Plaintiff fails to plead facts that state a claim for relief
plausible on its face.
PENDING MOTIONS
Plaintiff has filed a motion for status hearing (Doc. 6). This motion (Doc. 6) is DENIED,
as this case has just cleared threshold review. The Clerk of the Court shall send a copy of the docket
sheet in addition to this Memorandum and Order to Plaintiff. Plaintiff has also filed a motion to
sever claims, whereupon Plaintiff seeks to sever his claim that transfer to Lawrence impinged his
constitutional rights (Doc. 7). This Court has examined Plaintiff’s claim and determined that it fails
to state a claim for relief. This motion (Doc. 7) is DENIED.
Finally, Plaintiff has filed a motion for service of process at Government expense (Doc. 8).
Plaintiff is not proceeding in this case in forma pauperis. See Generally Larry G. Harris v. Warden
Ryker, et al., S.D. Ill., Civil Case No. 3:11-648-GPM. In fact, Plaintiff has paid the necessary
$350.00 filing fee. Id. However, the Court recognizes that because Plaintiff is incarcerated and he
may have difficulty effectuating service within the 120 day time limit imposed by Federal Rule of
Civil Procedure 4(m). Accordingly, Plaintiff’s motion for service of process at Government expense
(Doc. 8) is GRANTED.

Page 5 of 7

DISPOSITION
COUNT One survives threshold review and shall receive further consideration.
Counts Two, Three, and Five fail to state a claim upon which relief can be granted and are
DISMISSED with prejudice.
Count Four is DISMISSED because the State provides an adequate remedy, and therefore
Plaintiff has no civil rights claim.
The Clerk of the Court is DIRECTED to (1) issue summons to Defendants Ryker, Hodge,
Campanella, Gaetz, Wadkins, Klindworth, McBride, Bradley, Runyun, Allen, Bowerman,
Williams, Swartz, and Hughes, (2) prepare, on Plaintiff’s behalf, a form USM-285 for each
Defendant, and (3) deliver service packets for each defendant, consisting of the completed summons,
a USM-285 form, a copy of the complaint, and a copy of this Memorandum and Order The United
States Marshal SHALL, pursuant to Federal Rule of Civil Procedure 4, personally serve upon each
Defendant the summons, a copy of the complaint, and a copy of this Memorandum and Order. All
costs of service shall be advanced by the United States, and the Clerk shall provide all necessary
materials and copies to the United States Marshal Service.
It is FURTHER ORDERED that Plaintiff shall serve upon Defendants, or if an appearance
has been entered by counsel, upon that attorney, a copy of every pleading or other document
submitted for consideration by this Court. Plaintiff shall include with the original paper to be filed
a certificate stating the date that a true and correct copy of the document was mailed to each
defendant or counsel. Any paper received by a district judge or a magistrate judge which has not
been filed with the Clerk or which fails to include a certificate of service will be disregarded by the
Court.

Page 6 of 7

Defendant is ORDERED to timely file an appropriate responsive pleading to the complaint
and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Wilkerson for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Wilkerson for
disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties
consent to such a referral.
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give
security for the same, the applicant and his or her attorney were deemed to have entered into a
stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court,
who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff.
Local Rule 3.1(c)(1)
Finally, Plaintiff is ADVISED that he is under an obligation to keep the Clerk of Court
and each opposing party informed of any change in his address; the Court will not independently
investigate his whereabouts. This shall be done in writing and not later than 7 days after a
transfer or other change in address occurs. Failure to comply with this order will cause a delay
in the transmission of court documents and may result in dismissal of this action for want of
prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: August 23, 2012
/s/ ZA ctàÜ|v~ `âÜÑ{ç
G. PATRICK MURPHY
United States District Judge
Page 7 of 7