Harper v. Bedinger et al

Filing 5

ORDER DISMISSING CASE. Pursuant to 28 U.S.C. § 1915A(b)(1), this action is DISMISSED with prejudice as frivolous. Plaintiff Michael Harper is advised that the dismissal of this case counts as a "strike" within the meaning of 28 U.S.C. § 1915(g). The Clerk of Court will enter judgment in accordance with the attached order. Signed by Judge G. Patrick Murphy on 1/27/2012. (jhs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL HARPER, IDOC # B03541,
Plaintiff,
vs.
DANNY J. BEDINGER, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

CIVIL NO. 12-63-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff Michael Harper, a prisoner in the custody of the Illinois Department of Corrections
(“IDOC”) who currently is incarcerated in the Stateville Correctional Center, brings this action pro se
pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights by persons acting
under color of state law. Harper’s complaint is before the Court for screening pursuant to 28 U.S.C.
§ 1915A, which provides, in relevant part:
(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 upon which relief may
be granted[.]
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). A complaint fails to state a claim upon which
relief may be granted if it does not plead “enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is plausible on its face
Page 1 of 5

“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, 129 S. Ct. 1937, 1949 (2009).
Though a court must accept a plaintiff’s factual allegations as true, “some factual allegations will
be so sketchy or implausible that they fail to provide sufficient notice to defendants of the plaintiff’s
claim.”

Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).

Also, courts “should not

accept as adequate abstract recitations of the elements of a cause of action or conclusory legal
statements.” Id. The factual allegations of a pro se complaint must be liberally construed.
See Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006) (citing Haines v. Kerner, 404 U.S.
519, 520 (1972)).
According to the allegations of Harper’s pro se complaint, on December 21, 2010, while
Harper was incarcerated at the Menard Correctional Center (“Menard”), Harper was issued a
disciplinary report by Defendant Danny J. Bedinger, a guard at Menard. On December 24, 2010,
Harper appeared before an adjustment committee consisting of Defendants Jack D. Ashby and
Tonya D. Kenner, both of whom are guards at Menard.

Harper was found guilty of the

disciplinary charge against him, and the adjustment committee recommended that Harper be
sentenced to C-grade status, disciplinary segregation, and restrictions on his commissary privileges
for six months. On December 30, 2010, the adjustment committee’s recommended sentence was
approved by Defendant David A. Rednour, the warden of Menard. On February 14, 2011, Harper
grieved his disciplinary sentence to Defendant Jeannette Cowan, a grievance officer at Menard, who
refused to act on Harper’s grievance.

Harper then appealed his grievance to the IDOC’s

administrative review board, and directed numerous inquiries about the status of his appeal to
Defendant Gina Allen, an administrative review board member; Harper received no reply to his
Page 2 of 5

inquiries. Harper alleges procedural irregularities in the disciplinary proceedings leading to his
sentence, and claims that his due process rights have been violated by Defendants. The Court
concludes that this action must be dismissed.
In general, a plaintiff convicted or sentenced for an offense may not bring an action for
damages under 42 U.S.C. § 1983 where “a judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence,” save when “the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.” Heck v. Humphrey, 512 U.S. 477, 487 (1994).
The rule of Heck v. Humphrey “is intended to prevent collateral attack on a criminal conviction
through the vehicle of a civil suit.” McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir. 2006). The
Heck rule extends to civil rights claims arising out of prison disciplinary hearings, if those claims
necessarily call into question the validity of sentences imposed by prison authorities for infractions
of prison discipline. See Edwards v. Balisok, 520 U.S. 641, 645-48 (1997); Dixon v. Chrans, 101
F.3d 1228, 1230-31 (7th Cir. 1996); Clayton-El v. Fisher, 96 F.3d 236, 242-45 (7th Cir. 1996);
Miller v. Indiana Dep’t of Corr., 75 F.3d 330, 331 (7th Cir. 1996). In this instance, Harper does not
allege that the prison disciplinary sentence of which he complains has been invalidated, and thus his
Section 1983 claim is Heck-barred.1

1. The fact that, under Heck, Harper’s sole federal remedy for the complained-of violation of his
constitutional rights is habeas corpus does not mean, of course, that this Court is authorized to
construe Harper’s complaint under 42 U.S.C. § 1983 as a petition brought under 28 U.S.C. § 2254.
“[W]hen a suit that should have been prosecuted under the habeas corpus statute is prosecuted as a
civil rights suit instead, it should not be ‘converted’ into a habeas corpus suit and decided on the
merits.” Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir. 1999). Instead, the civil rights suit “should
simply be dismissed, leaving to the prisoner to decide whether to refile it as a petition for habeas
corpus. The reasons are various, and include the fact that habeas corpus for state prisoners requires
exhaustion of state remedies and that prisoners generally are limited to seeking federal habeas corpus
only once.” Id.
Page 3 of 5

Even if Harper’s claim under 42 U.S.C. § 1983 were not Heck-barred, he nonetheless has
failed to state a claim for a violation of due process. To prevail on a claim of a violation of the right
to due process, a prisoner must show that he or she possesses a protected liberty or property interest
and has been deprived of that interest without due process. See Zinermon v. Burch, 494 U.S.
113, 125 (1990); Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). As noted, the
disciplinary sentence at issue in this case consisted of demotion to C-grade status, disciplinary
segregation, and restrictions on Harper’s commissary privileges for six months. With respect to
segregation, as a rule, a prisoner has no protected liberty interest in remaining in the general
population of a prison, except in rare cases where “segregation conditions . . . constitute an ‘atypical
and significant hardship on the inmate in relation to the ordinary incidents of prison life.’”
Thomas v. Ramos, 130 F.3d 754, 760 (7th Cir. 1997) (quoting Sandin v. Conner, 515 U.S. 472, 484
(1995)). The United States Court of Appeals for the Seventh Circuit has recognized that “an
inmate’s liberty interest in avoiding segregation [is] very limited or even nonexistent,” and terms of
segregated confinement of six months or less generally do not implicate due process. Marion v.
Columbia Corr. Inst., 559 F.3d 693, 697 & n.2 (7th Cir. 2009) (collecting cases). Similarly,
Harper’s six-month demotion to C-grade does not implicate a due process liberty interest. See
Whitford v. Boglino, 63 F.3d 527, 533 n.7 (7th Cir. 1995) (“Whitford’s demotion to C grade for six
months did not implicate his federal due process rights.”). Finally, Harper does not have a
protectible due process liberty interest in his commissary privileges. See Thigpen v. Walker,
Civil No. 07-162-DRH, 2007 WL 773390, at *2 (S.D. Ill. Mar. 12, 2007) (a one-year denial of a
prisoner’s commissary privileges does not implicate a due process liberty interest). This action will
be dismissed.
Page 4 of 5

To conclude, pursuant to 28 U.S.C. § 1915A, the Court finds that Harper’s complaint is
frivolous. Therefore, this action is DISMISSED with prejudice. Harper is advised that the
dismissal of this case will count as one of his three allotted “strikes” under 28 U.S.C. § 1915(g).
The Clerk of Court will enter judgment in accordance with this Order.
IT IS SO ORDERED.
DATED: January 27, 2012

/s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

Page 5 of 5