Smith v. Oakley et al

Filing 10

AMENDED ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. IT IS HEREBY ORDERED that Count 2 is DISMISSED with prejudice for failure to state a claim upon which relief can be granted. Counts 3, 4, and 5 are DISMISSED without prejudice for f ailure to state a claim upon which relief may be granted. IT IS ALSO ORDERED that Defendants OAKLEY, ATCHISON, MUELLER, (SARAH) JOHNSON, BENTON, OPALKA and GODINEZ are DISMISSED without prejudice from this action. If Plaintiff desires to request the appointment of the United States Marshal to serve process on the Defendants, Plaintiff shall file a motion for service of process at government expense, within 35 days of the date of entry of this order. The Clerk of Court is DIRECTED to mail to Plaintiff the Courts Pro Se Litigant Guide, containing forms and instructions for filing said motion. Signed by Judge J. Phil Gilbert on 10/17/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PAUL SMITH, # B-64568,
Plaintiff,
vs.
LORI OAKLEY, TIMOTHY VEATH,
DAVID JOHNSON,
MICHAEL ATCHISON,
BARB MUELLER, SARAH JOHNSON,
SHERRY BENTON, DANA OPOLKA,
and SALVADORE GODINEZ,
Defendants.

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Case No. 13-cv-00876-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Paul Smith, an inmate currently incarcerated at Pontiac Correctional Center
(“Pontiac”), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 (Doc. 1). Plaintiff
claims that Defendants, who are all officials at Menard Correctional Center (“Menard”) or the
Illinois Department of Corrections (“IDOC”), failed to provide him with an impartial hearing on
a disciplinary ticket and/or ignored his grievances regarding the same, in violation of his
constitutional rights. He seeks compensatory and punitive damages (Doc. 1, p. 22).
Plaintiff is a frequent litigator in this Court. He has accumulated all three of his allotted
“strikes” under 28 U.S.C. § 1915(g) for filing lawsuits that are legally frivolous, malicious, or
fail to state a claim upon which relief may be granted. See, e.g., Smith v. Pender, No. 09-cv00349-MJR (S.D. Ill. Dec. 11, 2009) (order dismissing case); Smith v. Conder, No. 09-cv-00304GPM (S.D. Ill. Oct. 23, 2009) (same); and Smith v. Hulick, No. 08-cv-00871-JPG (S.D. Ill. June
15, 2009) (same). The Court of Appeals for the Seventh Circuit has issued an Order prohibiting

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Plaintiff from attempting to “proceed in forma pauperis without either disclosing that he has
three strikes or establishing that he is in imminent danger. . . .” Smith v. Pender, No. 09-4155
(7th Cir. Apr. 22, 2010). Plaintiff filed this action on August 26, 2013, without attempting to
proceed in forma pauperis, but he also failed to pay a filing fee. Facing dismissal of his
complaint if he did not do one or the other within thirty days, Plaintiff paid the $400 filing fee on
September 23, 2013. This matter is now ripe for preliminary review of the complaint under
28 U.S.C. § 1915A.
The Complaint
Plaintiff’s claims arise from a single disciplinary ticket that he received on
October 13, 2012, for assaulting an inmate, causing a dangerous disturbance, fighting, and
disobeying a direct order (Doc. 1, p. 6). He provides no explanation of the incident giving rise to
the ticket, and he does not dispute that an incident occurred. Plaintiff alleges that he was placed
in segregation on October 13, 2012, and ultimately found guilty of assault at an adjustment
committee hearing on October 18, 2012 (Doc. 1, pp. 6-7).
Plaintiff now sues nine defendants for the role each of them played in this process. He
appears to claim that each retaliated against him by violating his constitutional right to due
process and equal protection under the law and to access the Court. In the 24-page complaint
and 66-page exhibit, Plaintiff meticulously traces the meandering path of his disciplinary ticket
and his ensuing appeals and grievances through the hands of each Defendant over the course of
nearly ten months, moving backward and forward in time and space so quickly and unexpectedly
that this Court finds the complaint dizzying.

No doubt, Plaintiff’s complaint flirts with a

violation of Rule 8 of the Federal Rules of Civil Procedure.

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Plaintiff alleges that Defendants Timothy Veath and David Johnson, who are both
members of Menard’s adjustment committee (“AC”), conducted an improper hearing on his
disciplinary ticket in violation of his right to due process of law (Doc. 1, pp. 6-7). At the
hearing, Defendant Veath asked Plaintiff to explain how he could be charged with fighting and
assault (Doc. 1, p. 6). While the question was pending, Defendant Veath took a phone call.
Plaintiff speculates that the call came from internal affairs. Defendant Veath remained on the
phone for five seconds before hanging up and listening to Plaintiff’s answer, which happened to
be: “I don’t have a clue” (Doc. 1, p. 6). An officer, who is not named as a defendant in this
action, spoke at the hearing. An internal affairs officer, who is also not named, entered the room
afterwards but offered no testimony in Plaintiff’s presence.

Although Plaintiff requested

permission to call a witness, he was not able to do so. At some point, Plaintiff was asked to
leave the room.

When he returned, Defendant Veath informed him that the adjustment

committee found Plaintiff guilty of assault (Doc. 1, p. 7). When Plaintiff stated that he had not
formally entered a plea or testified to his version of the events, Defendant Veath responded, “It
really doesn’t matter” (Doc. 1, p. 7). The summary of the proceedings indicates that Plaintiff
entered a plea of “not guilty” and offered testimony of a witness; Plaintiff disputes both
statements (Doc. 1, p. 6; Doc. 1-1, pp. 25-26). He received one year of C-grade, segregation, and
commissary restriction (Doc. 1-1, p. 25).
Plaintiff went to great lengths to appeal this decision (Doc. 1, pp. 7-23; Doc. 1-1). He
spares the Court no details in describing his efforts. In fact, he devotes seventeen pages of the
complaint and virtually all of the 66-page exhibit to this description. When the allegations are
distilled to their essence--as they should have been to begin with--they are as follows:
(1) Defendant Timothy Veath (Menard AC chairperson) denied Plaintiff an impartial hearing on

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his disciplinary ticket by refusing to allow Plaintiff to enter a plea, denying Plaintiff’s request to
call a witness, and refusing to hear Plaintiff’s testimony (Doc. 1, pp. 6-7, 13, 17-18);
(2) Defendant David Johnson (Menard AC member) did the same (Doc. 1, pp. 6-7, 13, 17-18);
(3) Defendant Barb Mueller (Menard counselor) ignored Plaintiff’s grievances and appeals
(Doc. 1, pp. 10, 13, 19); (4) Defendant Dana Opolka (Menard counselor) also ignored Plaintiff’s
grievances and appeals challenging the hearing (Doc. 1, pp. 14, 19-20); (5) Defendant Lori
Oakley (Menard grievance officer) delayed a response to Plaintiff’s appeals and grievances for
more than three months (Doc. 1, pp. 8-10, 13, 16, 19-20); (6) Defendants Michael Atchison
(Menard warden) “failed to intervene” or even respond to Plaintiff’s grievances (Doc. 1, p. 9);
(7) Defendants Sarah Johnson (IDOC Administrative Review Board (“ARB”) chairperson),
Sherry Benton (IDOC ARB chairperson), and Salvador Godinez (IDOC director) “turned a blind
eye” to the problem (Doc. 1, pp. 7-8, 16-20). Plaintiff claims that this conduct amounted to
retaliation—for what, he did not say. In any event, Defendants’ conduct allegedly deprived
Plaintiff of his constitutional right to due process and equal protection under the law and to
access the Court. He now seeks to have his disciplinary ticket expunged (Doc. 1, p. 22). He also
seeks compensatory and punitive damages.
Merits Review Under § 1915A
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A.

Under § 1915A, the Court is required to promptly screen prisoner

complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). The Court is required
to dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim
upon which relief may be granted, or asks for money damages from a defendant who by law is
immune from such relief. 28 U.S.C. § 1915A(b).

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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
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, 678 (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). After fully considering the allegations in the complaint,
the Court deems it appropriate to exercise its authority under § 1915A(b) and dismiss some of
Plaintiff’s claims as discussed herein.
Discussion
The Court finds it convenient to divide the complaint into five 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.
Count 1: Fourteenth Amendment claim against Defendants for violation of Plaintiff’s
right to due process at his prison disciplinary hearing.
Count 2: Fourteenth Amendment claim against Defendants for violation of Plaintiff’s
right to due process based on Defendants’ failure to process Plaintiff’s grievances and/or appeals.
Count 3: Fourteenth Amendment equal protection and/or discrimination claim against
Defendants.

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Count 4: First Amendment claim against Defendants for denying Plaintiff access to the
courts.
Count 5: Retaliation claim against Defendants.
Count 1 - Due Process Violation at Disciplinary Hearing
Plaintiff alleges that he was denied due process in his disciplinary proceeding, which led
to his one-year confinement in disciplinary segregation. Having fully considered the allegations
in the complaint, the Court cannot say that Plaintiff has failed to state sufficient allegations of a
colorable Fourteenth Amendment Due Process claim (Count 1) against Defendants Timothy
Veath and David Johnson at this very early stage in litigation. As the Supreme Court has
observed, “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418
U.S. 539, 556 (1974). Prison disciplinary hearings satisfy procedural due process requirements
where an inmate is provided: (1) written notice of the charge against the prisoner twenty four
(24) hours prior to the hearing; (2) the right to appear in person before an impartial body; (3) the
right to call witnesses and to present physical/documentary evidence, but only when doing so
will not unduly jeopardize the safety of the institution or correctional goals; and (4) a written
statement of the reasons for the action taken against the prisoner. See Wolff, 418 U.S. at 563-69;
Cain v. Lane, 857 F.2d 1139, 1145 (7th Cir. 1988).
Not only must the requirements of Wolff be satisfied, but the decision of the disciplinary
hearing board must be supported by “some evidence.” Black v. Lane, 22 F.3d 1395, 1402 (7th
Cir. 1994). To determine whether this standard has been met, courts must determine whether the
decision of the hearing board has some factual basis. Webb v. Anderson, 224 F.3d 649 (7th Cir.
2000). Even a meager amount of supporting evidence is sufficient to satisfy this inquiry.

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Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007).

Plaintiff alleges that he was denied an

opportunity to present his version of events, to call a witness to testify, and to formally present
his plea.

Following this allegedly flawed hearing, Plaintiff’s disciplinary segregation was

sufficiently long to trigger an inquiry into whether the conditions of that segregation were
unusually harsh compared to the normal prison environment. See Sandin v. Connor, 515 U.S.
472, 486 (1995); Marion v. Columbia Corr. Inst., 559 F.3d 693, 699 (7th Cir. 2009). Although
further factual development of this claim will certainly be necessary, Plaintiff shall be allowed to
proceed with Count 1 against Defendants Veath and (David) Johnson at this time.
Count 1 fails as to all remaining defendants. Plaintiff does not allege that any other
defendants participated in the disciplinary hearing. Plaintiff, and many other inmates, seems to
think that any prison employee who knows (or should know) about his problems has a duty to fix
those problems. That theory is in direct conflict with the well-established rule that “public
employees are responsible for their own misdeeds but not for anyone else’s.” Burks v. Raemisch,
555 F.3d 592, 596 (7th Cir. 2009). See also Monell v. Dep’t of Soc. Serv., 436 U.S. 658 (1978);
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). (“The doctrine of respondeat
superior does not apply to § 1983 actions; thus to be held individually liable, a defendant must
be ‘personally responsible for the deprivation of a constitutional right.’”); Sanville, 266 F.3d at
740 (quoting Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)). See also Monell,
436 U.S. 658. Because Plaintiff’s complaint contains no allegations suggesting that any other
defendants were personally involved in the disciplinary hearing, or a constitutional violation
arising therefrom, Count 1 shall be dismissed against all remaining defendants.

Count 2 – Failure to Process Grievances

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Plaintiff has failed to state a Fourteenth Amendment claim (Count 2) against Defendants
for failing to process his grievances.

Prison grievance procedures are not constitutionally

mandated and thus do not implicate the Due Process Clause per se. As such, the alleged
mishandling of grievances “by persons who otherwise did not cause or participate in the
underlying conduct states no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). See
also Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th Cir. 2008); George v. Smith, 507 F.3d
605, 609 (7th Cir. 2007); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). Plaintiff
claims that Defendants Oakley, Atchison, Mueller, Opolka, (Sarah) Johnson, Benton, and
Godinez delayed or disregarded his grievances and/or appeals over the course of ten months.
Under the circumstances, this conduct does not give rise to a claim under the Fourteenth
Amendment, and Count 2 fails against these defendants. It also fails against Defendants Veath
and (David) Johnson, who had no personal involvement in processing Plaintiff’s appeals and/or
grievances. Accordingly, Count 2 shall be dismissed against all defendants.
Count 3 – Equal Protection/Discrimination
The Court finds Plaintiff’s equal protection/discrimination claim (Count 3) equally
unavailing. The complaint alleges that Plaintiff was subject to discrimination and violations of
equal protection under the law. In no way does Plaintiff develop this claim in the complaint,
either factually or legally. And although the Court is obligated to accept factual allegations as
true, 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). Courts “should
not accept as adequate abstract recitations of the elements of a cause of action or conclusory
legal statements.” Id. Plaintiff’s complaint contains nothing more than bald assertions related to

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discrimination and equal protection. This claim fails. Count 3 shall be dismissed against all
defendants.
Count 4 – Access to Courts
Plaintiff has also failed to articulate a colorable access to courts claim (Count 4).
Prisoners have a fundamental right of meaningful access to the courts. Bounds v. Smith, 430
U.S. 817 (1977). Violations of that right may be vindicated in federal court, e.g., in a civil rights
action pursuant to 42 U.S.C. § 1983. Actual or threatened detriment is an essential element of a
§ 1983 action for denial of access to the courts. Howland v. Kilquist, 833 F.2d 639, 642-43 (7th
Cir. 1987); Hossman v. Sprandlin, 812 F.2d 1019, 1021-22 (7th Cir. 1987). Such an allegation
must be more than merely conclusory:
The requirement that prisoners making access-to-courts claims allege specific
prejudice should not be understood as an onerous fact-pleading burden; it is
simply a requirement that a prisoner's complaint spell out, in minimal detail, the
connection between the alleged denial of access to legal materials and an inability
to pursue a legitimate challenge to a conviction, sentence, or prison conditions.
Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006). The complaint must “‘allow the court to
determine at the outset of the litigation, before costly discovery is undertaken, whether the
plaintiff has any tenable theory or basis of suit,’ and . . . place the defendants on notice of the
plaintiff's claim so that they can begin to prepare their defense.” Pratt v. Tarr, 464 F.3d 730, 733
(7th Cir. 2006) (quoting Ryan v. Mary Immaculate Queen Ctr., 188 F.3d 857, 860 (7th
Cir.1999)). In the instant case, Plaintiff does not make a single allegation which would describe
an actual or potential limitation on his access to the courts, by way of a missed opportunity to
bring a claim, his loss of a substantive right caused by Defendants, etc. Accordingly, Count 4
shall be dismissed against all defendants.

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Count 5 – Retaliation
Plaintiff’s retaliation claim against Defendants shall also be dismissed. In the prison
context, where an inmate is alleging retaliation, the inmate must identify the reasons for the
retaliation, as well as “the act or acts claimed to have constituted retaliation,” so as to put those
charged with the retaliation on notice of the claim(s). Higgs v. Carver, 286 F.3d 437, 439 (7th
Cir. 2002). The Plaintiff must have engaged in some protected First Amendment activity (for
example, filing a grievance or otherwise complaining about conditions of confinement),
experienced an adverse action that would likely deter such protected activity in the future, and
must allege that the protected activity was “at least a motivating factor” in the Defendants’
decision to take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009).
The inmate need not plead facts to establish the claim beyond doubt, but need only provide the
bare essentials of the claim, and in a claim for retaliation the reason for the retaliation and the
acts taken in an effort to retaliate suffice. Higgs, 286 F.3d at 439. Although the complaint
includes references to retaliation, vague references do not support a retaliation claim against
Defendants. Plaintiff does not indicate what protected activity was deterred, what act constituted
retaliation, or what might have been the motivating factor. Accordingly, Count 5 shall be
dismissed against all defendants.
Pending Motions
Plaintiff has filed a motion to appoint counsel (Doc. 2), which shall be referred to United
States Magistrate Judge Philip M. Frazier for further consideration.
Disposition
IT IS HEREBY ORDERED that Count 2 is DISMISSED with prejudice for failure to
state a claim upon which relief can be granted. Counts 3, 4, and 5 are DISMISSED without

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prejudice for failure to state a claim upon which relief may be granted.
IT IS ALSO ORDERED that Defendants OAKLEY, ATCHISON, MUELLER,
(SARAH) JOHNSON, BENTON, OPALKA and GODINEZ are DISMISSED without
prejudice from this action.
As to service of process on Defendants TIMOTHY VEATH and DAVID JOHNSON,
the Court recognizes that because Plaintiff is incarcerated in a different institution from the
location where his claims arose, he may have difficulty effectuating service within the 120 day
time limit imposed by Federal Rule of Civil Procedure 4(m). Plaintiff has not sought or been
granted leave to proceed in forma pauperis in this action, therefore, the Court will not
automatically appoint the United States Marshal to effect service of process upon Defendants.
However, if Plaintiff desires to request the appointment of the United States Marshal to serve
process on the Defendants, Plaintiff shall file a motion for service of process at government
expense, within 35 days of the date of entry of this order. The Clerk of Court is DIRECTED to
mail to Plaintiff the Court’s Pro Se Litigant Guide, containing forms and instructions for filing
said motion.
If Plaintiff does not timely file a motion for service of process at government expense, it
shall be Plaintiff’s responsibility to have Defendants TIMOTHY VEATH and DAVID
JOHNSON served with a summons and copy of the complaint pursuant to Federal Rule of Civil
Procedure 4. Plaintiff is advised that only a non-party may serve a summons. FED. R. CIV. P.
4(c)(2).
If Plaintiff requests the appointment of the United States Marshal, the Clerk of Court
shall prepare a summons and copies of the complaint and this Memorandum and Order for each
Defendant, and shall forward the same to the United States Marshal for service. If Plaintiff does

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not file a motion for service of process at government expense within 35 days as ordered, the
Clerk shall then prepare a summons for each Defendant, and shall forward the summonses and
sufficient copies of the complaint and this Memorandum and Order to Plaintiff so that he may
have Defendants served.
Plaintiff is ORDERED to 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
defendant’s counsel. Any paper received by a district judge or 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.
IT IS FURTHER ORDERED that, with respect to a Defendant who no longer can be
found at the work address provided by Plaintiff, if the United States Marshal is appointed to
serve process pursuant to a motion by Plaintiff, the employer shall furnish the United States
Marshal with the Defendant’s current work address, or, if not known, the Defendant’s lastknown address. This information shall be used only for effecting service of process. Any
documentation of the address shall be retained only by the Marshal. Address information shall
not be maintained in the court file or disclosed by the Marshal.
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, including a decision on Plaintiff’s
motion to appoint counsel (Doc. 2).

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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
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: October 17, 2013
s/ J. PHIL GILBERT
United States District Judge

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