Postlewaite v. Godinez et al

Filing 10

ORDER DISMISSING CASE with prejudice for failure to state a claim upon which relief may be granted. Defendants GODINEZ, HODGE, and TREDWAY are DISMISSED from this action with prejudice. Plaintiff is ADVISED that this dismissal shall count as one of his allotted strikes under the provisions of 28 U.S.C. § 1915(g). If Plaintiff wishes to seek IFP status, he SHALL FILE a motion for leave to proceed IFP within 21 days of the date of this order. The Clerk is DIRECTED to mail Plaintiff anothe r blank form motion. Whether or not Plaintiff files an IFP motion, a separate order shall issue for the deduction of payments from Plaintiff's prisoner trust fund account until the fee is paid in full. (Action due by 7/17/2014). Signed by Judge J. Phil Gilbert on 6/26/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JARVIS L. POSTLEWAITE, # R-25461,

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Plaintiff,
vs.
SALVADOR GODINEZ,
MARC G. HODGE,
and MRS. TREDWAY,
Defendants.

Case No. 14-cv-501-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, currently incarcerated at Lawrence Correctional Center (“Lawrence”), has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983, to challenge the conditions
of his confinement. The case was mistakenly filed in the Northern District of Illinois on April 9,
2014, and was then transferred to this Court.
Filing Fee Status
When Plaintiff submitted his complaint, he did not pay the $400.00 filing fee, nor did he
include a motion for leave to proceed in forma pauperis (“IFP”). The Clerk of Court notified
Plaintiff that he must take one of these actions within 30 days of the date his case was filed (Doc.
6). The Clerk’s letter had to be re-sent after it was returned for having the incorrect prisoner
number. Plaintiff ultimately sent in his prisoner trust fund account statement (Doc. 9), but to
date, he has not filed a motion for leave to proceed IFP.
Plaintiff incurred the obligation to pay the filing fee for this action at the time the case
was filed. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).

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Unless he is granted leave to proceed IFP, he must pay the full fee of $400.00. If he submits a
motion for leave to proceed IFP and it is granted, he would be responsible for a filing fee of only
$350.00 (a plaintiff with IFP status is exempt from paying the $50.00 administrative fee).
Plaintiff will be given one last chance to submit a motion for leave to proceed IFP. He must file
it no later than 21 days from the date of this order. If his motion is not timely filed, he shall be
assessed the higher amount.
The Complaint
Plaintiff states that in November 2013, he was transferred from a maximum security
prison to Lawrence, which is classified as a medium security institution (Doc. 1, p. 3). He was
housed in the South side of the prison, which is one of three housing areas. Both the North and
South sides are for general population inmates, however, the North side has access to a dayroom
while the South side does not. Inmates in all areas of the prison are given recreation time in the
prison yard and the gym. Plaintiff claims that the denial of dayroom access for South side
residents violates his rights to equal protection and due process, and constitutes an “atypical and
significant hardship in relation to the ordinary incidents of prison life” (Doc. 1, p. 4). He also
claims an Eighth Amendment violation for cruel and unusual punishment (Doc. 1, p. 5). The
lack of dayroom access affects “phone calls, showers, etc.” (Doc. 1, p. 6).
Plaintiff seeks declaratory and injunctive relief to ensure equal access to the dayroom for
all Lawrence inmates.
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

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considering the allegations in Plaintiff’s complaint, the Court concludes that this action is subject
to summary dismissal.
The essence of Plaintiff’s claim is that he has been treated differently from inmates who
are housed in another wing of the prison, where they enjoy access to a dayroom that is
unavailable to him. There is no indication that Plaintiff’s placement in this less-desirable
location was anything but random, and it appears that the physical limitations of the prison
facility are such that no dayroom exists in Plaintiff’s housing area. Despite the lack of a
dayroom, Plaintiff is afforded access to recreation time outside of his cell, both in the prison yard
and the gym, on the same basis as inmates in other wings.
The Court is unaware of any authority that guarantees all prisoners equal access to
facilities such as a prison dayroom. To the contrary, prison officials have discretion to house
inmates in any institution of their choice, or in any section of a particular prison, without
violating the Constitution. “States may move their charges to any prison in the system.”
DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th Cir. 1992) (citing Montanye v. Haymes, 427
U.S. 236 (1976)). See also Meachum v. Fano, 427 U.S. 215, 224 (1976) (the Constitution does
not guarantee placement in a particular prison). Not every prison (or individual housing area)
will have the same features or amenities that might be available elsewhere.
The lack of dayroom access, even if it leads to some restrictions on phone or shower
privileges, does not rise to the level of a constitutional deprivation, nor does it constitute an
atypical or significant hardship. The Constitution does not recognize an inmate’s liberty interest
in telephone privileges, see Sandin v. Connor, 515 U.S. 472 (1995), and regulations limiting
telephone use by inmates have been sustained routinely as reasonable. See, e.g., Arsberry v.
Illinois, 244 F.3d 558, 564 (7th Cir. 2001). Plaintiff does not allege that he has no ability to

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maintain contact with family or attorneys because of the lack of a dayroom. He does not explain
how his shower privileges may have been affected, but the Seventh Circuit has found that even
restricting an inmate to only one shower each week does not rise to the level of a constitutional
deprivation. See Davenport v. DeRobertis, 844 F.2d 1310, 1316-17 (7th Cir. 1988).
For the due process clause to be applicable in this instance, there must be a protected
liberty interest that is being infringed upon. Meachum, 427 U.S at 223-24. However, not every
action (such as a housing assignment) that carries with it negative consequences creates a liberty
interest for inmates. Moody v. Daggett, 429 U.S. 78, 86-88 (1976). The Seventh Circuit has
stated, relying on Montanye v. Haymes, 427 U.S. 236 (1976), that inmates do not possess a
liberty or property interest in their prison classifications or assignments. DeTomaso v. McGinnis,
970 F.2d 211, 212 (7th Cir. 1992). Plaintiff’s due process claim therefore fails.
Likewise, he has no equal protection claim for his differential treatment compared to
prisoners housed in the North wing of Lawrence. 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)). Purposeful discrimination “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 contains no hint that
Defendants intentionally placed Plaintiff in the wing that lacked a dayroom, for the purpose of
depriving him of this amenity.

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Finally, the inability to use a dayroom does not appear to have impaired Plaintiff’s
reasonable access to the prison’s exercise and recreational areas. The Eighth Amendment
protects prison inmates from serious deprivations of basic human needs such as food, medical
care, sanitation, or physical safety. Rhodes v. Chapman, 452 U.S. 337, 346 (1981); see also
James v. Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir. 1992). Courts have recognized that
prisoners need adequate exercise in order to maintain basic health. The Seventh Circuit has
noted that a “[l]ack of exercise could rise to a constitutional violation where movement is denied
and muscles are allowed to atrophy, and the health of the individual is threatened.” Harris v.
Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988); see also Turley v. Rednour, 729 F.3d 645, 652-53
(7th Cir. 2013) (plaintiff stated Eighth Amendment claim where cumulative effect of repeated
lockdowns deprived him of yard privileges, and cell was too small for physical activity);
Delaney v. DeTella, 256 F.3d 679, 683-84 (7th Cir. 2001); French v. Owens, 777 F.2d 1250,
1255 (7th Cir. 1985), cert. denied, 479 U.S. 817 (1986).
Plaintiff admits that he has regular access to the gym and yard, and does not allege that he
has suffered any deprivation or restriction on his ability to engage in regular exercise outside his
cell. Thus, he has failed to state a claim upon which relief may be granted for an Eighth
Amendment violation.
Disposition
If Plaintiff wishes to seek IFP status, he SHALL FILE a motion for leave to proceed IFP
within 21 days of the date of this order (on or before July 17, 2014). The Clerk is DIRECTED
to mail Plaintiff another blank form motion. Whether or not Plaintiff files an IFP motion, a
separate order shall issue for the deduction of payments from Plaintiff’s prisoner trust fund
account until the fee is paid in full. See 28 U.S.C. § 1915(b).

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For the reasons stated above, this action is DISMISSED with prejudice for failure to
state a claim upon which relief may be granted. Defendants GODINEZ, HODGE, and
TREDWAY are DISMISSED from this action with prejudice.
Plaintiff is ADVISED that this dismissal shall count as one of his allotted “strikes” under
the provisions of 28 U.S.C. § 1915(g).
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)1 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: June 26, 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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