Marrissette v. Taylor et al

Filing 14

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Defendants TAYLOR, DEEN, and KISRO are DISMISSED from this action with prejudice. COUNT 3 against DEFENDANT HEARTMAN is dismissed with prejudice for failure to state a claim.As to COUNTS 1 and 2, the Clerk of Court shall prepare for Defendants GOETTING, MARTIN, DAVIS, ROBINSON, BAILEY, MARVIN, HEARTMAN, and HARRIS: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Gladyse Taylor, K Deen and Theresa Kisro terminated. Signed by Judge J. Phil Gilbert on 9/14/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KEITH MARRISSETTE, #M-10855,
Plaintiff,
vs.
GLADYSE TAYLOR,
JODY GOETTING, ALLEN MARTIN,
RANDY DAVIS, ROBINSON,
K. DEEN, THERESA KISRO,
PHILLIP L. BAILEY,
MARCUS T. MARVIN, HEARTMAN,
and HARRIS,
Defendants.

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CASE NO. 11-cv-1143-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, currently incarcerated at Pinckneyville Correctional Center (“Pinckneyville”), has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. He is nearing the end of a
five year sentence for obstruction of justice and violation of an order of protection. Plaintiff
claims that he was improperly held in segregation for 90 days, after the disciplinary charges that
caused him to be placed there were expunged, and that the conditions in his segregation cell were
intolerably cold. The events giving rise to his claims began while he was incarcerated in Shawnee
Correctional Center (“Shawnee”), and continued during his confinement at Pinckneyville.
Specifically, Plaintiff alleges that while he was at Shawnee, he was placed on “room
restriction” on November 21, 2010, but was not notified of that restriction at the time. The
following day, despite the restriction, guards allowed Plaintiff out of his cell for breakfast and

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other activity. While he was in the gym, two officers took him back to his cell, and he was sent to
segregation and issued a disciplinary ticket (Doc. 1, p. 9). Only after the ticket was issued was
Plaintiff finally given notice of the room restriction. Defendants Marvin and Bailey conducted
Plaintiff’s disciplinary hearing on December 3, 2010, but refused to call any of Plaintiff’s
requested witnesses. Plaintiff’s original punishment of 90 days in segregation was expunged
effective December 3, 2010 (Doc. 1, pp. 17, 21). Plaintiff asserts the expungement was approved
on December 28, 2010, by Defendant Martin (the Shawnee warden). However, he was not
released from segregation at that time. Instead, he was transferred on December 29, 2010, to the
segregation unit at Pinckneyville.
Soon after his arrival, Plaintiff spoke to Defendant Kisro (a counselor), who informed him
for the first time that his ticket had been expunged on December 3, and he should write to the
warden in order to be released from segregation. Plaintiff wrote to Defendants Davis (the
Pinckneyville warden) and Goetting (Pinckneyville clinical services supervisor), but got no
response. He then filed a grievance on January 4, 2011 (Doc. 1, pp. 10, 23-24). The grievance
was returned to him by Defendant Heartman (Pinckneyville counselor), who told him it must be
sent to the Administrative Review Board (“ARB”) in Springfield because Plaintiff came from
another facility. Plaintiff did so, but did not receive the ARB’s response until after his release
from segregation (Doc. 1, p. 25). He was put back into general population on March 9, 2011
(Doc. 1, p. 10).
As a result of Plaintiff’s grievance, Defendant Deen recommended that he be given his
state pay that he would have earned if he had not been wrongly held in segregation, and Plaintiff
did receive this pay. However, Defendant Deen did not recommend he be awarded the

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educational good conduct credit of 45 days that he could have earned had his participation in his
educational course not been interrupted by the confinement in segregation (Doc. 1, pp. 11, 21).
Plaintiff also asserts he could have been eligible for another 45 days of educational good conduct
credit if he had been released earlier from segregation in accordance with the expungement order
(Doc. 1, p. 12).
After coming out of segregation, Plaintiff also requested a transfer. Defendant Kisro put
in a transfer request to East Moline Correctional Center, but it was denied (Doc. 1, p. 11).
Plaintiff blames Defendant Kisro for failing to follow up on the transfer request.
While he was in segregation at Pinckneyville, Plaintiff complained to Defendants
Heartman, Robinson, and Harris (correctional officers) about the extremely cold conditions in his
cell. The windows were broken and would not close properly, making it difficult for Plaintiff
(who has asthma) to breathe the cold air (Doc. 1, pp. 10, 12, 14). However, these Defendants
refused to turn on the heat, provide him with a blanket or warm clothes, or move him to another
cell.
Not only was Plaintiff wrongly confined in segregation for over 90 days, he claims that the
disciplinary ticket contributed to the termination of his parental rights to his two children.
Defendant Heartman told a child welfare worker that Plaintiff was in segregation due to what he
assumed were disciplinary problems. In fact, these remarks were untrue because the disciplinary
ticket had been expunged. Defendant Heartman’s statement was used in a report submitted to the
Champaign County Circuit Court, which terminated Plaintiff’s parental rights (Doc. 1, p. 35).
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of
the complaint. Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has

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articulated a colorable federal cause of action against Defendants Goetting, Martin, Davis, Bailey,
Marvin, and Heartman for deprivation of a liberty interest without due process, when they failed
to remove him from segregation after his charges were expunged (Count 1). Plaintiff may also
proceed on his claim against Defendants Heartman, Harris, and Robinson for cruel and unusual
punishment due to the inhumane cell conditions in segregation (Count 2).
As to Defendant Heartman, Plaintiff also claims a denial of due process based on
Defendant Heartman’s statement to a child welfare worker regarding Plaintiff being placed in
segregation for disciplinary problems (Count 3). This assertion fails to state a constitutional
claim. The March 11, 2011, report to the state circuit court, which Plaintiff attaches (Doc. 1, pp.
32-39), evaluates Plaintiff’s history with respect to his children, and includes both positive and
negative observations of his progress, of which Defendant Heartman’s statement is only one part.
Plaintiff states that the circuit court judge’s decision to terminate his parental rights was made five
months later on August 9, 2011, based on the content of this report. What role the statement by
Defendant Heartman played in the termination ruling is mere speculation. If there was any
deprivation of Plaintiff’s due process rights (an assertion this Court finds highly dubious), it came
about in the state court proceeding which terminated Plaintiff’s parental rights. That is a question
which cannot be addressed in the context of this civil rights action. Accordingly, Count 3 shall be
dismissed.
Plaintiff’s claims against Defendants Taylor, Kisro, and Deen shall also be dismissed
pursuant to 28 U.S.C. § 1915A. Plaintiff fails to state a claim against Defendant Taylor (acting
director of the Illinois Department of Corrections), because the doctrine of respondeat superior is
not applicable to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)

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(citations omitted). Plaintiff states only that Defendant Taylor failed to take action when he
appealed his wrongful confinement imposed by her subordinates. This does not amount to an
allegation that Defendant Taylor was “personally responsible for the deprivation of a
constitutional right.” Id. See also Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009)
(supervisor who has delegated responsibilities to others does not incur liability merely through
being informed of prisoner’s complaint).
Defendant Kisro simply told Plaintiff, upon his arrival at Pinckneyville, of the procedure to
seek release from segregation (writing to the warden) (Doc. 1, p. 10). She had no further
involvement in the handling of his requests to be released. Plaintiff’s only other allegation against
her arose months after he came out of segregation, when he applied for a transfer to another
prison, but was denied (Doc. 1, p. 11). There is no indication that Defendant Kisro made the
ultimate decision to deny the transfer. More importantly, no constitutional right is implicated by
the denial of a transfer. “[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). Accordingly, Plaintiff states no claim against
Defendant Kisro, and she shall be dismissed from the action.
Likewise, Plaintiff’s allegations against Defendant Deen fail to state a cognizable claim.
Defendant Deen made recommendations in response to Plaintiff’s grievances, in which he asked
to be awarded the educational good conduct credits that he believes he would have earned if he
had been allowed to complete his classes. She recommended against granting the credits, and also

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recommended he not be restored to A grade or transferred (Doc. 1, p. 11-13). First, Plaintiff’s
belief that he would have earned up to 90 days of educational good conduct credits if he had not
been interrupted by the wrongful stay in segregation, while plausible, is speculative at best. There
was no guarantee that he would have earned those credits even if he had not been forced to exit
the educational program when he was placed in segregation. Secondly, an inmate has no
constitutional claim where he files a grievance, and simply disagrees with the outcome. See
Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (plaintiff’s argument that conspiracy by
prison officials to deny administrative review of his grievances by dismissing them was frivolous
where plaintiff had access to the grievance procedure but he did not obtain the outcome he
desired). Finally, as noted above, Plaintiff has no constitutional right to a reclassification or
transfer. DeTomaso, 970 F.2d at 212. Defendant Deen shall be dismissed from this action.
Disposition
Defendants TAYLOR, DEEN, and KISRO are DISMISSED from this action with
prejudice. COUNT 3 against DEFENDANT HEARTMAN is dismissed with prejudice for
failure to state a claim.
As to COUNTS 1 and 2, the Clerk of Court shall prepare for Defendants GOETTING,
MARTIN, DAVIS, ROBINSON, BAILEY, MARVIN, HEARTMAN, and HARRIS: (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 each Defendant’s place of employment as
identified by Plaintiff. If a 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
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appropriate steps to effect formal service on that Defendant, and the Court will require that
Defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of
Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if not
known, the 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 or
disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every 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 the document was served on Defendants 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.
Defendants are 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.
Further, this entire matter is 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.
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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)
Finally, 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: September 14, 2012

s/J. Phil Gilbert
United States District Judge

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