Reid v. Bundren et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. COUNT 4 is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. The Clerk of Court shall prepare for Defendants BUNDREN and JONES: (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 2/7/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ELIJAH REID, # M-12485,
Plaintiff,
vs.
M. BUNDREN (Badge No. 11667)
and C/O JONES,
Defendants.

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Case No. 13-cv-51-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, currently incarcerated at Pontiac Correctional Center (“Pontiac”), has brought
this pro se civil rights action pursuant to 42 U.S.C. § 1983. His claims arose while Plaintiff was
confined at Tamms Correctional Center (“Tamms”), which has since been closed. Plaintiff is
serving a life sentence for murder. Plaintiff claims that he was subjected to excessive force, was
subsequently denied medical treatment for his injuries, and was improperly punished as a result
of a false disciplinary report.
Specifically, Plaintiff states that Defendant Bundren engaged in a longstanding pattern of
harassment and threats against Plaintiff (Doc. 1, p 3). On March 25, 2012, Defendants Bundren
and Jones conducted a strip search of Plaintiff before placing him in handcuffs and leg irons to
walk him to the shower. Defendant Bundren, while making vulgar comments to Plaintiff,
clamped the handcuffs extremely tightly onto Plaintiff’s wrists, causing him pain (Doc. 1, p. 4).
After placing Plaintiff in leg irons, Defendants pushed him toward the shower, causing the leg
irons to cut into his ankles. Once in the shower, Defendants pushed Plaintiff to the floor, and
Defendant Bundren continued to taunt him (Doc. 1, p. 5). Defendants removed the leg irons,
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closed the shower door with Plaintiff inside, and then Defendant Bundren yanked Plaintiff’s
arms (still cuffed behind him) through the chuckhole. Defendant Bundren twisted the handcuffs,
saying, “I told [you] that you were going to pay for what you did in Menard” (Doc. 1, p. 5).
Plaintiff screamed out in pain, but Defendant Bundren told him to shut up and bent Plaintiff’s
hand backwards. When Defendant Bundren removed the cuffs, he told Plaintiff, “you got blood
on my handcuffs” (Doc. 1, pp. 5-6). Defendant Jones, who had been present the entire time,
laughed, and both Defendants walked away. Plaintiff realized that his ankles and wrists were
bleeding, and his wrists were swollen, purplish, and extremely painful. Plaintiff’s calls for a
nurse were unanswered.
Thirty minutes later, Defendant Jones returned with another officer, and told Plaintiff that
Defendant Bundren reported that Plaintiff had spit in his eye and Plaintiff would have to wear a
“spit mask” (Doc. 1, p. 6). Plaintiff denied spitting on Defendant Bundren, and Defendant Jones
admitted that Plaintiff was right, but said he didn’t see anything. Plaintiff showed Defendant
Jones his injuries and asked to see a nurse. After first promising to get medical help, Defendant
Jones informed Plaintiff at lunch that he would not send a nurse, even when Plaintiff told him
that he was in pain and the swelling had increased (Doc. 1, p. 7).
Plaintiff was charged with the offense of “102: assaulting any person,” and requested
Defendant Jones as a witness (Doc. 1, p. 7). When interviewed, Defendant Jones stated that he
did not see whether Defendant Bundren was assaulted. Plaintiff was found guilty and disciplined
with one year segregation, one year C-grade and loss of commissary privileges, and loss of one
year of good conduct credit (Doc. 1, p. 8). Plaintiff notes, however, that he is not entitled to
good time because he is sentenced to serve a term of natural life without the possibility of parole.
Plaintiff invokes this Court’s supplemental jurisdiction to consider his state law battery

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claim along with his constitutional claims. He seeks declaratory and injunctive relief as well as
damages.
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
articulated a colorable federal cause of action against Defendants Bundren and Jones for
excessive force (Count 1), for deliberate indifference to medical needs (Count 2), and for battery
(Count 3). However, Plaintiff’s allegation that he was deprived of a liberty interest without due
process as a result of the false disciplinary report (Count 4) fails to state a claim upon which
relief may be granted, and shall be dismissed for the following reasons.
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 assault by
Defendant Bundren. He does not indicate that he was denied any of the procedural protections
described in Wolff. To the contrary, his witness (Defendant Jones) was interviewed and
Defendant Jones’ statement was considered by the disciplinary hearing committee.

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Unfortunately for Plaintiff, Defendant Jones’ testimony did not help his defense (See Doc. 1, pp.
13-14). When an inmate is given a proper hearing, yet is found guilty of a false charge, he has
no constitutional claim so long as the decision of the disciplinary hearing board was supported
by “some evidence.” Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994). The testimony of the
accusing officer is sufficient to meet this standard. On the other hand, if Plaintiff was not
afforded the procedural protections in Wolff, he still may not have an actionable claim.
To sustain a claim under § 1983 for a procedural due process violation, an inmate must
show that the state deprived him of a constitutionally protected interest in “life, liberty, or
property” without due process of law. Zinermon v. Burch, 494 U.S. 113, 125 (1990). An inmate
has a due process liberty interest in being in the general prison population only if the conditions
of his or her disciplinary confinement impose “atypical and significant hardship[s] . . . in relation
to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). For
prisoners whose punishment includes being put in disciplinary segregation, under Sandin, “the
key comparison is between disciplinary segregation and nondisciplinary segregation rather than
between disciplinary segregation and the general prison population.” Wagner v. Hanks, 128 F.3d
1173, 1175 (7th Cir. 1997).
The Seventh Circuit has recently elaborated two elements for determining whether
disciplinary segregation conditions impose atypical and significant hardships: “the combined
import of the duration of the segregative confinement and the conditions endured by the prisoner
during that period.” Marion v. Columbia Corr. Inst., 559 F.3d 693, 697-98 (7th Cir. 2009)
(emphasis in original).
The first prong of this two-part analysis focuses solely on the duration of disciplinary
segregation. For relatively short periods of disciplinary segregation, inquiry into specific

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conditions of confinement is unnecessary. See Lekas v. Briley, 405 F.3d 602, 612 (7th Cir. 2005)
(56 days); Thomas v. Ramos, 130 F.3d 754, 761 (7th Cir. 1997) (70 days) (“a relatively short
period when one considers his 12 year prison sentence”). In these cases, the short duration of the
disciplinary segregation forecloses any due process liberty interest regardless of the conditions.
See Marion, 559 F.3d at 698 (“we have affirmed dismissal without requiring a factual inquiry
into the conditions of confinement”).
In Plaintiff’s case, he was sentenced to one year of disciplinary segregation. This would
often be a long enough period of time to require factual inquiry into the conditions of
segregation. However, in light of Plaintiff’s life sentence, even a one year period is relatively
short. 1 Further, in an inquiry as to whether the segregation conditions faced by Plaintiff were
unusually harsh compared to his normal prison environment, see Sandin v. Connor, 515 U.S.
472, 486 (1995), the fact that Plaintiff was confined in Tamms and now has been transferred to
Pontiac cannot be ignored. The general conditions of confinement at Tamms, which until its
closure was the only state “supermax” facility, have been found to impose atypical and
significant hardships. Westefer v. Snyder, 422 F.3d 570, 589-90 (7th Cir. 2005). Plaintiff, now
in Pontiac, is no longer subject to the conditions prevailing in Tamms.
Plaintiff’s complaint does not include any description of his conditions of segregation,
either at Tamms or in Pontiac. Instead, the chief concern he raises in the complaint is that he
now has a staff assault on his record, for something he did not do. Under Marion, however, the
factual allegations in Plaintiff’s complaint do not indicate any deprivation of a due process
liberty interest for his segregation time. And it is well established that inmates have no liberty or

1

The information on the website of the Illinois Department of Corrections indicates that Plaintiff is now
35 years of age. Inmate Search Page, http://www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx
(last visited Feb. 6, 2013).
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property interest in their classifications and prison assignments. See DeTomaso v. McGinnis,
970 F.2d 211, 212 (7th Cir. 1992) (citing Montanye v. Haymes, 427 U.S. 236 (1976)). Nor does
the loss of other privileges 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). A loss of good time credit would
implicate a liberty interest if the loss would affect the length of Plaintiff’s sentence – but here,
Plaintiff’s life sentence is unchanged regardless of the revocation of good time. 2 Accordingly,
Count 4 shall be dismissed.
Pending Motion
Plaintiff’s motion for appointment of counsel (Doc. 3) shall be referred to United States
Magistrate Judge Frazier for further consideration.
Disposition
COUNT 4 is DISMISSED without prejudice for failure to state a claim upon which
relief may be granted.
The Clerk of Court shall prepare for Defendants BUNDREN and JONES: (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 appropriate steps

2

Plaintiff may not seek damages in a § 1983 action for the loss of good conduct credits. A revocation of
good time credits may be challenged in a federal habeas corpus action pursuant to 28 U.S.C. § 2254, 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).
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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. Frazer for further pre-trial proceedings, which shall include a determination on
the pending motion for appointment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Frazier for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties
consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs

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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: February 7, 2013

s/ J. Phil Gilbert
United States District Judge

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