Dagans v. Schornback et al

Filing 8

IT IS HEREBY ORDERED that Plaintiff's complaint (Doc. 1) is DISMISSED without prejudice for failure to state a claim upon which relief can be granted. Plaintiff is GRANTED leave to file his First Amended Complaint on or before May 13, 2014. Should Plaintiff fail to file his First Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, the entire case may be dismissed with prejudice. The Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form. (Amended Pleadings due by 5/13/2014). Signed by Judge J. Phil Gilbert on 4/8/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JERROLD DAGANS, #B19479,
Plaintiff,
vs.
J. SCHORNBACK, C. HASEMEYER,
D. CHILDERS, MAJOR CAWAN,
D. MITCHELL and R. NEWELL,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 14-cv-00316-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, an inmate who is currently incarcerated at Stateville Correctional Center
(“Stateville”), brings this civil rights action pursuant to 42 U.S.C. § 1983 (Doc. 1). Plaintiff’s
claims arise from an allegedly false disciplinary ticket he received at Menard Correctional Center
(“Menard”) in 2012, which resulted in his transfer to Tamms Correctional Center (“Tamms”) and
his extended confinement in segregation (Doc. 1, p. 5). Plaintiff now sues four Menard officials
and two Tamms officials for alleged violations of Illinois criminal law. He seeks compensatory
damages, state back pay, and a prison transfer (Doc. 1, p. 6).
Merits Review Under 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).
1

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). The claim of entitlement to
relief must cross “the line between possibility and plausibility.”

Id. at 557.

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). Additionally, Courts
“should not accept as adequate abstract recitations of the elements of a cause of action or
conclusory legal statements.” Id. At the same time, however, the factual allegations of a pro se
complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 821 (7th Cir. 2009).
The Complaint
According to the complaint, Plaintiff was involved in an altercation with another inmate
at Menard on May 25, 2012 (Doc. 1, p. 5). As a result, he was issued a disciplinary ticket for
fighting, causing a dangerous disturbance, and disobeying a direct order (Doc. 1, p. 10). Plaintiff
was immediately placed in segregation and transferred to Tamms the following month.
This disciplinary ticket is not in dispute.
Plaintiff’s claims instead arise from a second disciplinary ticket he received in connection
with the May 2012 altercation. On July 11, 2012, Plaintiff was issued a ticket for carrying

2

dangerous contraband during the May altercation (Doc. 1, pp. 11, 13). This ticket followed a
series of interviews with Menard officials, in which Plaintiff was accused of but denied owning a
homemade weapon. The complaint alleges that Plaintiff was issued the ticket because he failed
to cooperate with an investigation into gang-related activities by Menard officials.
Plaintiff maintained his innocence from “day one” (Doc. 1, p. 5). Even so, he was found
guilty of the violation at an adjustment committee hearing1 on July 24, 2012 (Doc. 1, pp. 13-14).
After fourteen months, Plaintiff’s ticket was expunged, following an investigation and review by
the administrative review board (“A.R.B.”) (Doc. 1, p. 6). Even so, Plaintiff continues to be held
in administrative detention (Doc. 1, p. 8). He alleges that the A.R.B. “failed to respond within
[a] re[a]sonable time to obtain proper relief.”
Plaintiff now sues Defendants for intentional and malicious violations of Illinois law
(Doc. 1, p. 8). According to the complaint, Defendants are each guilty of five separate felonies
under Illinois law, including official misconduct, intimidation, obstruction of justice, disorderly
conduct, and criminal conspiracy (Doc. 1, pp. 15-18).

Plaintiff seeks a prison transfer,

compensatory damages, and state back pay.
Discussion
After carefully reviewing the allegations in Plaintiff’s complaint, the Court finds that it
has no subject matter jurisdiction to hear this case. The complaint poses no actual federal
question. See 28 U.S.C. § 1331 (granting district courts “original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States”). “Section 1983 creates a
federal remedy against anyone who, under color of state law, deprives ‘any citizen of the United
States . . . of any rights, privileges, or immunities secured by the Constitution and laws.’”
1

Without providing many details, the complaint alludes to possible procedural defects in the disciplinary
hearing, such as Plaintiff’s inability to call witnesses or review surveillance videos.

3

Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Dept. Health, 699 F.3d
962, 972 (7th Cir. 2012) (quoting 42 U.S.C. § 1983). Despite suing Defendants under § 1983,
Plaintiff does not allege that Defendants violated his rights under any federal laws or the U.S.
Constitution. Therefore, subject matter jurisdiction does not arise under 28 U.S.C. § 1331 based
on a federal question.
Subject matter jurisdiction does not arise based on diversity of citizenship either.
See 28 U.S.C. § 1332 (granting district courts “original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between . . . citizens of different states . . .”). The complaint includes no allegations suggesting
that the requirements for diversity jurisdiction are satisfied. Given the fact that an Illinois
prisoner is suing Illinois officials, it does not appear that diversity jurisdiction exists.
Plaintiff would have difficulty bringing his claims in any court, whether federal or state.
Plaintiff’s claims are limited to state criminal claims against Defendants. Criminal statutes do
not provide for private civil causes of action. See generally Diamond v. Charles, 476 U.S. 54,
64-65 (1986) (holding that private citizens cannot compel enforcement of criminal law). In other
words, Plaintiff cannot proceed against Defendants on criminal claims at all.
As pleaded, the complaint must be dismissed for lack of subject matter jurisdiction.
However, the dismissal shall be without prejudice, and Plaintiff shall be granted leave to file a
“First Amended Complaint” addressing the defects in his pleading noted below, if he wishes to
pursue his claims against Defendants. Plaintiff is INSTRUCTED to file a proper § 1983
complaint with this Court within 35 days of the date of this order. Failure to follow the Court’s
instructions will result in dismissal of this action for failure to state a claim under § 1915A.

4

The Clerk of Court is INSTRUCTED to send Plaintiff the appropriate form to submit a § 1983
claim.
First Amended Complaint
When filing his amended complaint, Plaintiff should label the pleading “First Amended
Complaint.” He should also use this case number. Plaintiff must indicate whether he is bringing
this action pursuant to 42 U.S.C. § 1983 or some other law. Plaintiff should be careful to include
sufficient facts to demonstrate that each defendant violated his rights—constitutional or
otherwise. As the events giving rise to this action began in May 2012, Plaintiff must be mindful
of the impending statute of limitations deadline for any state or federal claims and file his
amended pleading with this Court, or a separate complaint in state court, before the statute of
limitations expires.
With this in mind, the Court turns to the potential substantive claims raised by Plaintiff,
and the legal standard governing each.
1.

Due Process Claim
According to the allegations, Plaintiff may have been denied due process under the

Fourteenth Amendment in conjunction with his disciplinary ticket, disciplinary hearing, or its
expungement. 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 v. McDonnell, 418 U.S. 539, 56369 (1974); Cain v. Lane, 857 F.2d 1139, 1145 (7th Cir. 1988). In addition, the decision of the

5

disciplinary hearing board must be supported by “some evidence.” Black v. Lane, 22 F.3d 1395,
1402 (7th Cir. 1994). Even a meager amount of supporting evidence is sufficient to satisfy this
inquiry. Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007).
It is unclear whether Plaintiff’s due process rights were violated under the above-stated
standard.

Plaintiff is therefore granted leave to address this claim in his First Amended

Complaint.
2.

Retaliation
The complaint also mentions, but does not develop, a retaliation claim. In the prison

context, where an inmate is alleging retaliation, it is not enough to simply state the cause of
action. The inmate must identify the reasons that retaliation has been taken, 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). Plaintiff shall be
given one more opportunity to plead a retaliation claim against Defendants in his First Amended
Complaint.
3.

Conspiracy
It is clear that Plaintiff intended to assert a conspiracy claim, albeit a criminal claim,

against Defendants. Although his claim for criminal conspiracy cannot proceed, civil conspiracy
claims may be cognizable under § 1983. See Lewis v. Washington, 300 F.3d 829, 831 (7th Cir.
2002) (recognizing conspiracy claim under section 1983).

“[I]t is enough in pleading a

conspiracy merely to indicate the parties, general purpose, and approximate date. . . .” Walker
v. Thompson, 288 F.3d 1005, 1007-08 (7th Cir. 2002). See also Hoskins v. Poelstra, 320 F.3d
761, 764 (7th Cir. 2003); Tierney v. Vahle, 304 F.3d 734, 740 (7th Cir. 2002). Plaintiff shall

6

have one more opportunity to assert a civil conspiracy claim against Defendants in the First
Amended Complaint.
Pending Motions
Plaintiff filed a motion for recruitment of counsel (Doc. 2), which is hereby HELD IN
ABEYANCE until the Court receives Plaintiff’s First Amended Complaint.
Plaintiff also filed a motion for leave to proceed in forma pauperis (Doc. 3), which shall
be addressed in a separate Order.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s complaint (Doc. 1) is DISMISSED
without prejudice for failure to state a claim upon which relief can be granted. Plaintiff is
GRANTED leave to file his “First Amended Complaint” on or before May 13, 2014 Should
Plaintiff fail to file his First Amended Complaint within the allotted time or consistent with the
instructions set forth in this Order, the entire case may be dismissed with prejudice. FED. R. APP.
P. 41(b).

See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v.

Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915A.
Should Plaintiff decide to file an amended complaint, it is strongly recommended that he
use the forms designed for use in this District for such actions. He should label the form, “First
Amended Complaint,” and he should use the case number for this action.

The amended

complaint shall present each claim in a separate count, and each count shall specify, by name,
each defendant alleged to be liable under the count, as well as the actions alleged to have been
taken by that Defendant. Plaintiff should attempt to include the facts of his case in chronological
order, inserting Defendants’ names where necessary to identify the actors. Plaintiff should
refrain from filing unnecessary exhibits. Plaintiff should include only related claims in his new

7

complaint. Claims found to be unrelated will be severed into new cases, new case numbers will
be assigned, and additional filing fees will be assessed. To enable Plaintiff to comply with this
order, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form.
An amended complaint supersedes and replaces the original complaint, rendering the
original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1
(7th Cir. 2004). The Court will not accept piecemeal amendments to the original complaint.
Thus, the First Amended Complaint must stand on its own, without reference to any previous
pleading, and Plaintiff must re-file any exhibits he wishes the Court to consider along with the
First Amended Complaint. The First Amended Complaint is subject to review pursuant to
28 U.S.C. § 1915A.
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee of $350.002 remains due and payable,
regardless of whether Plaintiff elects to file an amended complaint. See 28 U.S.C. § 1915(b)(1);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
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. APP. P. 41(b).

2

Plaintiff has filed a motion for leave to proceed in forma pauperis (Doc. 3), which is currently pending.
If the motion is granted, the filing fee is $350.00. If the motion is denied, Plaintiff will instead be
obligated to pay the full $400.00 filing fee.

8

IT IS SO ORDERED.
DATED: April 8, 2014
s/ J. Phil Gilbert
U.S. District Judge

9