Hood v. McClelland et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier, denying 5 MOTION to Supplement filed by Richard L Hood. If Plaintiffs complaint is not dismissed after the § 1915A preliminary review, his documents may be relevant at a later stage of the case and may be resubmitted at that time. The Clerk is DIRECTED to return Plaintiffs documents to him. IT IS HEREBY ORDERED that COUNT 1B fails to state a claim upon which relief may be granted and thus is DISMISSED with prejudice. COUNT 1A is DISMISSED without prejudice to Plaintiff bringing his claims in a properly filed habeas corpus action, but only after he has exhausted his state court remedies. DEFENDANTS MCCLELLAND, MITCHELL, WATKINS, and BENTON are dismissed from this action without prejudice. COUNT 2 shall receive further consideration. IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Defendant JOHNSON: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge J. Phil Gilbert on 7/10/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RICHARD HOOD, #B-08072,
Plaintiff,
vs.
LT. MCCLELLAND, LT. MITCHELL,
C/O WATKINS, WARDEN JOHNSON,
and SHERRY BENTON,
Defendants.

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CASE NO. 11-cv-854-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Richard Hood, an inmate at Tamms Correctional Center (“Tamms”), brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff is
serving a 27 year sentence for aggravated battery. This case is now before the Court for a
preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any event, as
soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
28 U.S.C. § 1915A.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief
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can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint is
plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662 (2009). Although the Court is obligated to accept factual allegations as true, see
Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or
implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v. Ross, 578
F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate abstract
recitations of the elements of a cause of action or conclusory legal statements.” Id. At the same
time, however, the factual allegations of a pro se complaint are to be liberally construed. See
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the complaint and supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; portions of this action are subject to
summary dismissal.
The Complaint
Plaintiff’s complaint names Lt. McClelland, Lt. Mitchell, Correctional Officer Watkins,
Warden Johnson, and Sherry Benton, who Plaintiff claims each violated his constitutional rights.
On September 9, 2009, Defendant McClelland “wrote [Plaintiff] up for excess property”
(Doc. 1, p. 5). Defendant McClelland and another officer had searched Plaintiff’s cell and found
thirty-six religious books and magazines and two pairs of ear buds, one of which was broken
(Doc. 1, p. 5). Plaintiff claims he intended on giving his excess property to his fiancee and
alleges the guards and property officer knew of this intention (Doc. 1, p. 5). However, because

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“the property officer was running behind,” the guards would not write him up for excess property
when they searched his cell every few days (Doc. 1, p. 5).
Following the September 9, 2009, “write-up,” Defendants Mitchell and Watkins presided
over a disciplinary hearing where Plaintiff was classified as C-grade. Furthermore, because
Plaintiff was found guilty, he was subsequently disapproved for lost good time restoration for
over one year. At the hearing, Plaintiff claims that Defendant Mitchell would not allow him to
call witnesses. Immediately following this hearing, Plaintiff wrote a grievance, which was
subsequently signed by Defendant Johnson. Plaintiff claims that he was removed by Defendant
Johnson from the “Behavior Incentive Program” in retaliation for filing this grievance (Doc. 1, p.
5).
Plaintiff requests expungement of the September 9, 2009, disciplinary report in addition
to compensatory damages (Doc. 1, p. 7).
Discussion
Based on the allegations of the complaint, the Court finds it convenient to divide the pro
se action into two (2) counts. The parties and the Court will use these designations in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of these counts does not constitute an opinion as to their merit.
Count 1 - Due Process
Plaintiff claims that he was deprived of one year good conduct credit and classified as Cgrade as a result of an inadequate disciplinary hearing. When a plaintiff brings an action under
§ 1983 for procedural due process violations, he must show that the state deprived him of a
constitutionally protected interest in “life, liberty, or property” without due process of law.

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Zinermon v. Burch, 494 U.S. 113, 125 (1990). In Hanrahan v. Lane, 747 F.2d 1137, 1140-41
(7th Cir. 1984), the Seventh Circuit held that the filing of false disciplinary charges by a
correctional officer does not state a Fourteenth Amendment claim when the accused inmate is
given a subsequent hearing on those charges in which the inmate is afforded the procedural
protections outlined in Wolff v. McDonnell, 418 U.S. 539 (1974) (advance written notice of the
charge, right to appear before the hearing panel, the right to call witnesses if prison security
allows, and a written statement of the reasons for the discipline imposed). The Seventh Circuit
reasoned that prisoners have a right “to be free from arbitrary actions of prison officials,”
Hanrahan, 747 F.2d at 1140, but determined that the procedural protections outlined in Wolff
provided the appropriate protection against arbitrary actions taken by a correctional officer such
as issuing the inmate a fabricated conduct violation.
In the instant complaint, Plaintiff states that he was falsely accused of possessing excess
property by Defendant McClelland when extenuating circumstances would not allow him to
discharge his property. Furthermore, Plaintiff’s complaint includes allegations suggesting he did
not receive all of the procedural protections outlined in Wolff during his subsequent disciplinary
hearing, particularly his right to call prison property personnel and Commissary Officer Tinsley
as witnesses. Plaintiff has pled sufficient facts to suggest that he was not provided due process
during his disciplinary hearing. Thus, Plaintiff’s claim for a due process violation hinges on
whether or not the state deprived him of a constitutionally-protected interest as a result of the
hearing.

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A - Good Conduct Credit
A loss of good time credit does implicate a liberty interest because such a loss potentially
affects the length of Plaintiff’s sentence. As such, Plaintiff presents a cognizable due process
claim regarding good time credit revoked in the disciplinary proceeding following his September
9, 2009, write-up. However, the proper method for challenging the revocation of good time
credit is habeas corpus, but only after Plaintiff has exhausted his remedies through the Illinois
state courts. See, e.g., Heck v. Humphrey, 512 U.S. 477, 480-81 (1994). The Illinois courts have
recognized mandamus as an appropriate remedy to compel prison officials to award sentence
credit to a prisoner. See Turner-El v. West, 811 N.E.2d 728, 733 (Ill. App. 2004) (citing Taylor
v. Franzen, 417 N.E.2d 242, 247, aff'd on reh'g, 420 N.E.2d 1203 (Ill.App. 1981)). The State of
Illinois must first be afforded an opportunity, in a mandamus action pursuant to 735 ILL. COMP.
STAT. 5/14-101 et seq. to consider the merits of Plaintiff’s claim. Accordingly, this claim is
dismissed without prejudice to Plaintiff bringing his claims in a properly filed habeas corpus
action, but only after he has exhausted his state court remedies.
B - C-grade
Plaintiff claims that he was demoted to C-grade following his September 9, 2009, writeup. However, these allegations do not present a viable constitutional claim. See, e.g., Thomas v.
Ramos, 130 F.3d 754, 762 n.8 (7th Cir. 1997) (and cases cited therein) (no protected liberty
interest in demotion to C-grade status and loss of commissary privileges). As Plaintiff has no
liberty interest in demotion to C-grade status, he has failed to state a due process claim with
regard to this particular action taken by the disciplinary review board. Therefore, this claim shall
be dismissed with prejudice.
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Count 2 - Retaliation
Plaintiff asserts that Defendant Johnson removed him from a Behavior Incentive Program
in retaliation for the grievances he filed related to the September 9, 2009, disciplinary write-up.
Prison officials may not retaliate against inmates for filing grievances or otherwise complaining
about their conditions of confinement. See, e.g., Walker v. Thompson, 288 F.3d 1005 (7th Cir.
2002); DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000); Babcock v. White, 102 F.3d 267 (7th Cir.
1996); Cain v. Lane, 857 F.2d 1139 (7th Cir. 1988). Furthermore, “[a]ll that need be specified is
the bare minimum facts necessary to put the defendant on notice of the claim so that he can file
an answer.” Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). Naming the suit and the act of
retaliation is all that is necessary to state a claim of improper retaliation. Id. A complaint that
provides a short, clear statement of the relevant facts complies with the federal rules of civil
procedure, and thus cannot be dismissed because it does not allege all facts necessary to clearly
establish a valid claim. Id.
At issue here is whether Plaintiff experienced an adverse action that would likely deter
First Amendment activity in the future, and if the First Amendment activity was “at least a
motivating factor” in the Defendants’ decision to take the retaliatory action. Bridges v. Gilbert,
557 F.3d 541, 551 (7th Cir. 2009). This is a question that cannot be resolved at the pleading
stages of this case. Thus, the Court is unable to dismiss Plaintiff’s retaliation claim at this time.
Pending Motion to Supplement Complaint
ORDER DENYING MOTION (Doc. 5) TO FILE SUPPLEMENT: On October 14,
2011, this Court received a proposed supplement to the complaint from Plaintiff, consisting of 63
pages. The Court construes this proposed document as a motion for leave to file the tendered
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supplement. Plaintiff’s complaint (Doc. 1), consisting of 7 pages, is currently under initial
review by the Court pursuant to 28 U.S.C. § 1915A. Federal Rule of Civil Procedure 8(a)(2)
directs that a complaint shall contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Further, Rule 8(d)(1) states that “[e]ach allegation must be simple,
concise, and direct.” Plaintiff’s request to submit 63 pages of supplements is unreasonable in
light of Rule 8. In addition, at the preliminary review stage of the litigation, voluminous exhibits
are unnecessary. See FED. R. CIV. P. 26-37. IT IS THEREFORE ORDERED that Plaintiff’s
motion for leave to file the tendered supplement (Doc. 5) is DENIED, and the tendered
documents shall not be filed in this case. If Plaintiff’s complaint is not dismissed after the §
1915A preliminary review, his documents may be relevant at a later stage of the case and may be
resubmitted at that time. The Clerk is DIRECTED to return Plaintiff’s documents to him.
Disposition
IT IS HEREBY ORDERED that COUNT 1B fails to state a claim upon which relief
may be granted and thus is DISMISSED with prejudice. COUNT 1A is DISMISSED without
prejudice to Plaintiff bringing his claims in a properly filed habeas corpus action, but only after
he has exhausted his state court remedies. DEFENDANTS MCCLELLAND, MITCHELL,
WATKINS, and BENTON are dismissed from this action without prejudice. COUNT 2 shall
receive further consideration.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Defendant
JOHNSON: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and
(2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a
copy of the complaint, and this Memorandum and Order to Defendant’s place of employment as
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identified by Plaintiff. If Defendant fails to sign and return the Waiver of Service of Summons
(Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take
appropriate steps to effect formal service on Defendant, and the Court will require Defendant to
pay the full costs of formal service, to the extent authorized by the Federal Rules of Civil
Procedure.
IT IS FURTHER ORDERED that, if Defendant cannot be found at the address
provided by Plaintiff, the employer shall furnish the Clerk with Defendant’s current work
address, or, if not known, Defendant’s last-known address. This information shall be used only
for sending the forms as directed above or for formally effecting service. Any documentation of
the address shall be retained only by the Clerk. Address information shall not be maintained in
the court file, nor disclosed by the Clerk.
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendant (or upon
defense counsel once an appearance is entered), a copy of every further pleading or other
document submitted for consideration by the Court. Plaintiff shall include with the original
paper to be filed a certificate stating the date on which a true and correct copy of any document
was served on Defendant or counsel. Any paper received by a district judge or magistrate judge
that has not been filed with the Clerk or that fails to include a certificate of service will be
disregarded by the Court.
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 Philip M. Frazier for further pre-trial proceedings.
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Further, this entire matter is hereby REFERRED to United States Magistrate Judge
Frazier 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.
IT IS FURTHER ORDERED that if judgment is rendered against Plaintiff, and the
judgment includes the payment of costs under § 1915, Plaintiff will be required to pay the full
amount of the costs, notwithstanding that his application to proceed in forma pauperis has been
granted. See 28 U.S.C. § 1915(f)(2)(A).
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).
Plaintiff is ADVISED that he is under a continuing 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: July 10, 2012

s/J. Phil Gilbert
United States District Judge

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