Owens v. Fisher et al

Filing 5

ORDER DISMISSING CASE with prejudice for failure to state a claim upon which relief may be granted. Plaintiff is ADVISED that this dismissal shall count as one of his allotted "strikes" under the provisions of 28 U.S.C. § 1915(g). Signed by Judge Michael J. Reagan on 1/21/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LAWRENCE OWENS, # R-02021,
Plaintiff,
vs.
C/O FISHER, C/O JCH,
and MARK HODGE,
Defendants.

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Case No. 13-cv-1331-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff, who is currently incarcerated at Lawrence Correctional Center
(“Lawrence”), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. He is serving a
25-year sentence for murder.

In the complaint, Plaintiff claims that his denim jacket was

unlawfully confiscated and destroyed following his transfer to Lawrence. He now sues three
Lawrence officials, including Defendants Hodge (warden), Fisher (correctional officer), and Jch
(correctional officer), for monetary damages, declaratory judgment, and injunctive relief
(Doc. 1, p. 7).
The Complaint
According to the complaint, Plaintiff purchased a denim jacket from Hill
Correctional Center (“Hill”) in 2006 (Doc. 1, p. 5). He was allowed to wear the jacket at Hill, a
medium security facility, and later at Menard, a maximum security facility. Following his
transfer to Lawrence, a medium security prison, in April 2012, Defendant Fisher informed
Plaintiff that he would not be allowed access to his denim jacket or television, which broke in
route to Lawrence.

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In response, Plaintiff went on a hunger strike that lasted five days (Doc. 1, p. 6).
On April 10, 2012, Defendant Hodge spoke with Plaintiff at length and agreed to provide
Plaintiff with a replacement television. However, he would not agree to return the denim jacket.
The jacket was allegedly destroyed. Much to Plaintiff’s chagrin in November 2012, a large
number of “similarly situated” inmates at Lawrence received denim jackets identical to his.
Plaintiff now sues Defendants Hodge, Fisher, and Jch for illegal seizure of
property, denial of due process and equal protection of the law, and discrimination (Doc. 1, p. 7).
Among other things, Plaintiff seeks $8,000.00 in compensatory damages.
Merits Review Pursuant to 28 U.S.C. § 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. 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).
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

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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
summarily dismiss the complaint.
Discussion
The only constitutional right that might be implicated by the facts outlined in the
complaint is Plaintiff’s right, under the Fourteenth Amendment (Count 1), to be free from
deprivations of his property by state actors without due process of law.

The complaint

characterizes this claim as the “illegal seizure of property” under the Fourth Amendment and
“denial of [Plaintiff’s] due process rights” under the Fourteenth Amendment (Doc. 1, p. 7).
In any event, to state a claim under the due process clause of the Fourteenth Amendment,
Plaintiff must establish a deprivation of liberty or property without due process of law. If the
state provides an adequate remedy, Plaintiff has no civil rights claim. Hudson v. Palmer,
468 U.S. 517, 530-36 (1984) (availability of damages remedy in state claims court is an
adequate, post-deprivation remedy). The Seventh Circuit has found that Illinois provides an
adequate post-deprivation remedy in an action for damages in the Illinois Court of Claims.
Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999); Stewart v. McGinnis, 5 F.3d 1031,
1036 (7th Cir. 1993); 705 ILL. COMP. STAT. 505/8 (1995).

Accordingly, Plaintiff cannot

maintain a civil rights claim in this Court for the deprivation of his denim jacket, and Count 1
shall be dismissed with prejudice.
The complaint also fails to state a Fourteenth Amendment equal protection claim
(Count 2) against Defendants. According to the complaint, Lawrence officials discriminated
against Plaintiff by confiscating his denim jacket when he was allowed to possess it at other

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“similar[ly] situated” prisons, such as Hill (a medium security facility) and even Menard
(a maximum security facility). Other “similarly situated” inmates at Lawrence were issued
denim jackets in November 2012 (Doc. 1, p. 7). Because Defendants provided Plaintiff with no
legitimate penological reason for taking his jacket, the complaint concludes that Plaintiff was
“intentionally discriminated against and prejudiced, without provocation” (Doc. 1, p. 7).
A “prison administrative decision may give rise to an equal protection claim only
if the plaintiff can establish that ‘state officials had purposefully and intentionally discriminated
against him.’” Meriwether v. Faulkner, 821 F.2d 408, 415 n.7 (7th Cir.), cert. denied, 484 U.S.
935 (1987) (citing Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982)).
The gravamen of equal protection lies not in the fact of deprivation of a right but
in the invidious classification of persons aggrieved by the state’s action. A
plaintiff must demonstrate intentional or purposeful discrimination to show an
equal protection violation. Discriminatory purpose, however, implies more than
intent as volition or intent as awareness of consequences. It implies that a
decisionmaker singled out a particular group for disparate treatment and selected
his course of action at least in part for the purpose of causing its adverse effects
on the identifiable group.
Nabozny v. Podlesny, 92 F.3d 446, 453-54 (7th Cir. 1996) (quoting Shango, 681 F.2d at 1104).
The complaint does not allege that Plaintiff was part of a protected class or that he was singled
out for disparate treatment because of his membership in that class. For purposes of the equal
protection clause, prisoners (not to mention prisoners at particular prisons) do not represent a
constitutionally protected class. Therefore, the fact that Hill inmates were allowed to possess
jackets while Lawrence inmates were not provides no basis for an equal protection claim.
Further, the complaint fails to state a class-of-one equal protection claim. To state
a claim, an individual must allege that he was “intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment.” Swanson v.
Chetek, 719 F.3d 780, 784-85 (7th Cir 2013) (quoting Vill. of Willowbrook v. Olech, 528 U.S.
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562, 564 (2000)).

The Seventh Circuit explained class-of-one equal protection claims as

follows:
The classic class-of-one claim is illustrated when a public official, “with no
conceivable basis for his action other than spite or some other improper motive ...
comes down hard on a hapless private citizen.” Lauth v. McCollum, 424 F.3d
631, 633 (7th Cir. 2005). This improper motive is usually covert, so courts first
look to eliminate all proper motives. If there was no rational basis for the
treatment of the plaintiff, then the motives must be irrational and improper. See
Vill. of Willowbrook, 528 U.S. at 564–65. To achieve clarity, courts look to the
treatment of similarly situated individuals: if all principal characteristics of the
two individuals are the same, and one received more favorable treatment, this may
show there was no proper motivation for the disparate treatment.
Swanson v. Chetek, 719 F.3d at 783. The complaint fails to satisfy the requirements of a classof-one equal protection claim. Even assuming that a denim jacket could give rise to such a
claim--an assumption that this Court is reluctant to entertain even in this hypothetical--the
complaint must suggest that Plaintiff is similarly situated to those Lawrence inmates who
received a denim jacket in November 2012. Beyond a blanket assertion to this effect, the
complaint includes no allegations suggesting that the inmates were similarly situated to Plaintiff.
Under the pleading standards set forth in Twombly, 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.” Twombly, 590 U.S. at 570. Courts “should not accept as adequate abstract
recitations of the elements of a cause of action or conclusory legal statements.”

Brooks,

578 F.3d at 581. Plaintiff’s mere recitation of the elements of this cause of action, without
supporting facts, is not enough to state a class-of-one claim. Further, the fact that Lawrence
officials did not provide Plaintiff with what he considered to be adequate penological reasons for
confiscating the jacket and/or distributing jackets to other inmates does not suggest that no
rational reason existed. Accordingly, the equal protection claim fails, and Count 2 shall be
dismissed against Defendants with prejudice.
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Disposition
For the reasons stated above, this action is DISMISSED with prejudice for
failure to state a claim upon which relief may be granted.
Plaintiff is ADVISED that this dismissal shall count as one of his allotted
“strikes” under the provisions of 28 U.S.C. § 1915(g). Plaintiff’s obligation to pay the filing fee
for this action was incurred at the time the action was filed, thus the filing fee of $350.00 1
remains due and payable. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467
(7th Cir. 1998).
If Plaintiff wishes to appeal this dismissal, he may file a notice of appeal with this
Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for
leave to appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal.
See FED. R. APP. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the
$455.00 appellate filing fee irrespective of the outcome of the appeal. See FED. R. APP. P. 3(e);
28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008);
Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien, 133 F.3d at 467. Moreover, if the
appeal is found to be nonmeritorious, Plaintiff may also incur another “strike.” A timely motion
filed pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline.
FED. R. APP. P. 4(a)(4).
The Clerk shall CLOSE THIS CASE and enter judgment accordingly.
IT IS SO ORDERED.
DATED: January 21, 2014
s/ MICHAEL J. REAGAN
United States District Judge
1

Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2) has not yet been decided. Should the
motion be denied, the filing fee will be $400.00 instead of $350.00.
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