Martinez v. Bebout et al

Filing 7

ORDER DISMISSING CASE without 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 J. Phil Gilbert on 5/16/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FRANCISCO MARTINEZ, # M-19109,
Plaintiff,
vs.
SHANA BEBOUT, ANTHONY WILLS,
TIMOTHY VEATH,
and RICHARD HARRINGTON,
Defendants.

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Case No. 14-cv-453-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, regarding disciplinary sanctions
imposed on him while he was confined at Menard Correctional Center (“Menard”). Plaintiff has
been incarcerated since 2007. He is serving sentences of 27 years for murder, and four years on
a 2013 conviction for possession of a weapon in a penal institution.
In the complaint, filed on April 18, 2014, Plaintiff challenges one specific disciplinary
ticket, Number 201300196/1-MEN, issued on January 28, 2013, for 110-Impeding or Interfering
with an Investigation (Doc. 1, pp. 9-12). This ticket was issued by Defendant Bebout.
Plaintiff explains, by way of background, that prior to receiving the impeding/interfering
ticket, he had been charged with a different infraction on January 14, 2013. The January 14
charge was for dangerous contraband – specifically, possession of a homemade knife which was
found on the ground near Plaintiff (Doc. 1, p. 6). Although Plaintiff denied the weapon was his,
he was found guilty of the dangerous contraband violation on January 16, 2013, and was

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punished with six months in segregation as well as other sanctions1 (Doc. 1, pp. 6-7). Plaintiff
does not challenge the contraband ticket or punishment in the instant action.
Seven days after Plaintiff was found guilty of the dangerous contraband charge,
Defendant Bebout took him to the Internal Affairs office and questioned him about the same
weapon incident (Doc. 1, p. 7). Plaintiff continued to insist he knew nothing about the knife and
had no idea who put it there. Defendant Bebout told him he had until Friday to come up with a
name or story, or he would get a ticket for impeding or interfering with an investigation. On
Friday, Plaintiff’s response was the same, so Defendant Bebout issued the ticket on January 28,
2013 – 14 days after Plaintiff had been sent to segregation on the original dangerous contraband
charge. Id.
Plaintiff filed a grievance on February 8, 2013 (Doc. 1, pp. 6-8), objecting to the
impeding/interfering charge because it arose from the same incident for which he had already
been punished and was an improper second ticket; it was served on him more than eight days
after the incident, in violation of institutional rules; it falsely stated he had been given a copy of
the investigative report; and it was a false charge because he had told the truth in response to
Defendant Bebout’s questioning (Doc. 1, p. 7).
Plaintiff’s grievance was denied at the institutional level by Defendant Warden
Harrington on May 1, 2013 (Doc. 1, p. 9). He appealed further, and as a result, the
impeding/interfering charge and punishment was ultimately expunged on January 16, 2014 (Doc.
1, p. 10). The reasons given for the decision to expunge were that Menard personnel had not
complied with the applicable administrative rules found at Sections 504.30 and 504.80 of the
Illinois Administrative Code (Doc. 1, p. 10). ILL. ADMIN. CODE tit. 20, §§ 504.30, 504.80
1

The timing suggests that the homemade weapon incident may have led to Plaintiff’s 2013 criminal
conviction for possession of a weapon in a penal institution, but the complaint is silent on that matter.
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(2013).
The complaint does not disclose the date when the disciplinary hearing had been held on
the impeding/interfering charge or what punishment was imposed. However, Plaintiff was
evidently given some additional segregation time, because he claims he was “falsely imprisoned”
in segregation for 121 days as a result of the improper ticket, before the charge was expunged
(Doc. 1, p. 13). In an exhibit Plaintiff filed on May 9, 2014 (Doc. 6), Plaintiff states that he was
given one year of segregation as a result of this ticket (Doc. 6, p. 4). The complaint identifies
Defendants Wills and Veath as the officers who conducted the disciplinary hearing, but includes
no specific factual allegations against them.
Plaintiff seeks compensatory damages for his false imprisonment and mental anguish for
the 121 days he was required to serve in segregation before the disciplinary action was expunged
(Doc. 1, p. 13).
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the
complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief from an immune defendant.
After fully considering the allegations in Plaintiff’s complaint and exhibits, the Court
concludes that this action is subject to summary dismissal.
Plaintiff asserts that he was made to serve 121 more days (about four months) in
segregation than he should have spent there, as a result of the improper punishment for
impeding/interfering with an investigation. Notably, he was given six months in segregation for
the earlier dangerous contraband charge. Thus, it appears that he began to serve the additional
segregation time for the impeding/interfering charge once he completed his first six months in

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segregation. If he was originally given one additional year in segregation on the
impeding/interfering ticket, then he was released early as a result of the expungement.
Under certain limited circumstances, an inmate punished with segregation may be able to
pursue a claim for deprivation of a liberty interest without due process of law. See Marion v.
Columbia Corr. Inst., 559 F.3d 693, 697-98 (7th Cir. 2009). However, those circumstances are
not apparent in the instant case. First, although there were violations of the prison’s
administrative rules governing the disciplinary process, those discrepancies alone do not rise to
the level of a constitutional violation of Plaintiff’s procedural due process rights in reference to
the impeding/interfering charge. A federal court does not enforce state law or regulations, and a
state rule violation does not necessarily equal a wrong of constitutional dimension. See
Pasiewicz v. Lake Cnty. Forest Preserve Dist., 270 F.3d 520, 526 (7th Cir. 2001); Archie v. City
of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988) (en banc), cert. denied, 489 U.S. 1065 (1989).
Under Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974), in order to satisfy due process
concerns, an inmate facing disciplinary action must be given advance written notice of the
charge, the right to appear before the hearing panel, the right to call witnesses if prison safety
allows, and a written statement of the reasons for the discipline imposed. Further, the
disciplinary decision 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).
In light of Wolff, Plaintiff’s key allegations concern the question of advance notice. He
does not claim that he received no notice at all of the charge, however – only that he was not
charged within the eight-day time frame required in Section 504.30. ILL. ADMIN. CODE tit. 20,
§ 504.30. Even a delayed notice may satisfy Wolff, so long as it is received 24 hours in advance

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of the disciplinary hearing. Wolff, 418 U.S. at 564. Further, Plaintiff states only that he did not
receive a copy of the investigative report. Again, that omission may not run afoul of Wolff if
Plaintiff did in fact receive written notice of the factual basis for the impeding/interfering charge,
sufficient for him to prepare a defense. Thus, the complaint does not clearly indicate that
Plaintiff’s due process rights were violated in connection with this charge. However, even if the
Court assumes that the disciplinary process was not conducted according to the Wolff
requirements, the complaint still fails to state a cognizable claim for deprivation of a liberty
interest without due process.
First of all, the favorable ruling that expunged Plaintiff’s impeding/interfering charge in
January 2014 shows that Plaintiff received the due process he demanded, albeit not swiftly
enough to prevent him from serving the 121 days in segregation about which he now complains.
Equally important, the Supreme Court and the Seventh Circuit have strictly limited a
prisoner’s ability to pursue a civil rights claim for having been confined in punitive segregation.
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);
see also Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997) (in light of Sandin, “the right to
litigate disciplinary confinements has become vanishingly small”). 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, 128 F.3d at 1175.
The Seventh Circuit has elaborated two elements for determining whether disciplinary
segregation conditions impose atypical and significant hardships: “the combined import of the

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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
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”). More recently, the Seventh Circuit reiterated that, as it had
stated in Marion, six months in segregation “is not such an extreme term and, standing alone,
would not trigger due process rights.” Hardaway v. Meyerhoff, 734 F.3d 740, 744 (7th Cir.
2013) (quoting Marion, 559 F.3d at 698) (internal quotations omitted). However, confinement in
segregation for that length of time would trigger an inquiry into the conditions to which the
prisoner was subjected.
In Plaintiff’s case, he claims that he was confined in segregation four months longer than
he should have been. Four months could be long enough to prompt an inquiry into the
conditions of that confinement, if the segregation had been imposed after a procedurally flawed
hearing. As noted above, Plaintiff’s allegations do not suggest that the procedures ran afoul of
Wolff. Further, the Court may also consider the four-month confinement in the context of
Plaintiff’s total sentences: 27 years plus the consecutive four-year sentence imposed in 2013. In
light of Plaintiff’s entire sentence of approximately 31 years, a four-month confinement in
segregation, even if it was wrongfully imposed, is comparatively short. See Marion, 559 F.3d at

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697-98 n.2 (70-day segregation period is “relatively short” in the context of a 12-year prison
sentence, citing Thomas v. Ramos, 130 F.3d 754, 761 (7th Cir. 1997)).
Significantly, Plaintiff raises no complaint whatsoever regarding the conditions of his
confinement in segregation. He says only that he endured “mental anguish” due to being
wrongly punished for a false charge. While Plaintiff’s situation may have been unfair, this does
not represent an “atypical and significant hardship” as contemplated by the cases discussed
above. In the absence of any suggestion that the conditions he endured in segregation were any
more harsh than the conditions in non-disciplinary segregation, Plaintiff fails to raise a claim for
deprivation of a liberty interest without due process that would require further factual inquiry as
contemplated in Marion and Hardaway. Accordingly, this action shall be dismissed without
prejudice.
Pending Motion
Because this case shall be dismissed, Plaintiff’s motion for recruitment of counsel (Doc.
3) is DENIED AS MOOT.
Disposition
For the reasons stated above, this action is DISMISSED without 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). A dismissal without prejudice may count as a strike, so
long as the dismissal is made because the action is frivolous, malicious, or fails to state a claim.
See Paul v. Marberry, 658 F.3d 702, 704 (7th Cir. 2011). Plaintiff’s obligation to pay the filing
fee for this case was incurred at the time the action was filed, thus the filing fee of $350.00

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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 $505.00
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 v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
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)2 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: May 16, 2014
s/ J. Phil Gilbert
United States District Judge

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A Rule 59(e) motion to alter or amend a judgment must be filed no later than 28 days after the entry of
the judgment. FED. R. CIV. P. 59(e).
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