Rodriguez v. Kampfer

Filing 9

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. Defendant C/O KAMPFER is also DISMISSED without prejudice. Plaintiff is GRANTED leave to fil e his "First Amended Complaint" on or before April 16, 2015. 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 will be dismissed with prejudice. (Amended Pleadings due by 4/16/2015). Signed by Judge Staci M. Yandle on 3/12/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HERIBERTO RODRIGUEZ, Jr.,
# M-33820,
Plaintiff,
vs.
C/O KAMPFER,
Defendant.

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Case No. 15-cv-00101-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Heriberto Rodriguez, Jr., an inmate who is currently incarcerated at
Stateville Correctional Center (“Stateville”), brings this action pursuant to 42 U.S.C. § 1983 for
alleged violations of his constitutional rights at Menard Correctional Center (“Menard”).
Plaintiff claims that he was wrongfully disciplined for possession of a weapon (Doc. 1, pp. 6-7).
He seeks monetary damages and expungement of his disciplinary ticket (Doc. 1, p. 9).
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 Section 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

Page 1 of 8

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). As discussed in more detail below,
Plaintiff’s complaint does not survive preliminary review under Section 1915A and shall be
dismissed.
The Complaint
According to the complaint, Plaintiff was issued a disciplinary ticket at Menard for
possession of a weapon on July 20, 2013 (Doc. 1, p. 6). That day, Officer Kampfer conducted
two separate searches of Plaintiff’s cell that were each ten minutes apart.

During both

“shakedowns,” Plaintiff and his cellmate were taken to the shower. The cell “came out clean”
each time (Doc. 1, p. 6).
Plaintiff was called to the internal affairs office an hour after the second shakedown.
There, he was charged with possession of a weapon. He received a disciplinary ticket that night,

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but he could not read it. At his disciplinary hearing on July 23, 2013, Plaintiff learned that the
charges arose from the discovery of a weapon in his waistband during a strip search.
But Plaintiff was never subjected to a strip search. Even so, the adjustment committee found him
guilty of the rule violation on July 23, 2013. According to the final adjustment committee
hearing summary, he was punished with one year of segregation, demotion to C-grade status, and
commissary restriction.
Plaintiff now sues Officer Kampfer for unspecified constitutional violations. He seeks
monetary damages. He also seeks to have his disciplinary ticket expunged, after a polygraph test
and a DNA analysis of the fingerprints on the weapon are completed (Doc. 1, p. 9).
Discussion
Plaintiff challenges Defendant Kampfer’s issuance of a false disciplinary ticket against
him that resulted in his punishment with one year in segregation, demotion to C-grade status, and
commissary restriction.
Amendment.

This claim arises under the Due Process Clause of the Fourteenth

With the exception of Plaintiff’s placement in segregation, however, these

allegations do not present a viable constitutional claim that warrants a detailed discussion. This
is because there is no protected liberty interest in Plaintiff’s loss of status or his access to the
prison’s commissary. See, e.g., Thomas v. Ramos, 130 F.3d 754, 762 n.8 (7th Cir. 1997).
An “inmate’s liberty interest in avoiding segregation is limited.”

Hardaway v.

Meyerhoff, et al., 734 F.3d 740 (7th Cir. 2013) (quoting Marion v. Columbia Corr. Inst.,
559 F.3d 693, 697 (7th Cir. 2009)). Under certain circumstances, however, an inmate punished
with segregation can pursue a claim for deprivation of a liberty interest without due process of
law under the Fourteenth Amendment.

See Marion, 559 F.3d at 697-98.

allegations in the complaint, those circumstances are not present.

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Based on the

The complaint alleges that Plaintiff was issued a disciplinary ticket for possession of a
weapon that he did not possess.

The fact that Plaintiff received a disciplinary ticket based on

fabricated charges does not, standing alone, create a liberty interest.

Allegations of false

disciplinary reports do not state a claim where due process is afforded. Hadley v. Peters,
841 F. Supp. 850, 856 (C.D. Ill. 1994), aff’d, 70 F.3d 117 (7th Cir. 1995) (citing Hanrahan v.
Lane, 747 F.2d 1137, 1140 (7th Cir. 1984)). This is because a fair disciplinary hearing serves the
purpose of sorting out any erroneous charges. Id.
To satisfy due process, an inmate facing disciplinary charges must be given: (1) advance
written notice of the charges against him; (2) the opportunity to appear before an impartial
hearing body to contest the charges; (3) the opportunity to call witnesses and present
documentary evidence in his defense (if prison safety allows and subject to the discretion of
correctional officers); and (4) a written statement summarizing the reasons for the discipline
imposed. See Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974); Cain v. Lane, 857 F.2d 1139,
1145 (7th Cir. 1988). In addition, the decision of the adjustment committee must be supported
by “some evidence.” Black v. Lane, 22 F.3d 1395 (7th Cir. 1994). In other words, 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.
Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007). Plaintiff does not complain of a single
violation of these procedural safeguards. 1 The allegations in the complaint do not suggest that
Plaintiff’s disciplinary hearing violated the procedural safeguards described in Wolff.

1

Further, the denial of any request for DNA or polygraph testing would not provide any additional
support for Plaintiff’s due process claim. See, e.g., Jemison v. Knight, 244 Fed. Appx. 39, 42 (7th Cir.
2007) (citing Freitas v. Auger, 837 F.2d 806, 812 n. 13 (8th Cir. 1988) (holding that prisoners are not
entitled to polygraph tests in disciplinary hearings)).
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However, the Court’s analysis of Plaintiff’s due process claim does not end there.
Whether a protected liberty interest is implicated by Plaintiff’s confinement in segregation for a
year depends on whether that confinement “imposed an ‘atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.’”

Hardaway, 734 F.3d at 743

(citing Sandin v. Conner, 515 U.S. 472, 484 (1995)). Courts must consider two factors in
determining whether disciplinary segregation imposes atypical and significant hardships:
“the combined import of the duration of the segregative confinement and the conditions
endured.” Id. at 743 (citing Marion, 559 F.3d at 697-98) (emphasis in original)).
It appears from Plaintiff’s adjustment committee hearing summary that he received one
year in segregation. A liberty interest may arise from longer terms of confinement such as this,
triggering the need for further factual inquiry into the conditions of a prisoner’s confinement.
See Marion, 559 F.3d at 698 (holding that the issue of whether 240 days in disciplinary
segregation would implicate a protected liberty interest could not be decided at the pleading
stage).

However, the complaint includes no allegations describing the conditions that

Plaintiff endured in segregation. Without this basic information, the complaint fails to state any
claim upon which relief may be granted.
Given the above-referenced deficiencies in Plaintiff’s due process claim (which is the
only claim addressed in the complaint), the Court now finds that the complaint fails to pass
muster under Section 1915A and shall be dismissed. However, the dismissal shall be without
prejudice, and Plaintiff will be granted leave to file a “First Amended Complaint” addressing the
defects in his pleading, if he wishes to pursue his claims against Defendant Kampfer or anyone
else. Plaintiff is INSTRUCTED to file a proper Section 1983 complaint with this Court within
35 days of the date of this order. When doing so, he should follow the instructions set forth

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below. Failure to follow these instructions will result in dismissal of this action with prejudice
for failure to state a claim under Section 1915A. The Clerk of Court is INSTRUCTED to send
Plaintiff the appropriate form to submit a Section 1983 claim.
First Amended Complaint
When filing his amended pleading, 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 Defendant(s) violated his rights—constitutional or otherwise.
As the events giving rise to this action began in July 2013, Plaintiff does not appear to face any
impending statute of limitations deadline at this time on his federal claim, or before the deadline
for filing the First Amended Complaint expires.
Pending Motions
Plaintiff filed a motion to appoint counsel (Doc. 2), which shall be HELD IN
ABEYANCE until the Court receives Plaintiff’s First Amended Complaint.
Plaintiff also filed a motion for service of process at government expense (Doc. 3), which
is hereby DENIED.

The motion is unnecessary.

The Court will order service on any

defendant(s) against whom Plaintiff is allowed to proceed, once the Court completes its
preliminary review of the First Amended Complaint.
Finally, Plaintiff filed a motion for leave to proceed in forma pauperis (Doc. 6), which
shall be addressed in a separate Order of the Court.

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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. Defendant
C/O KAMPFER is also DISMISSED without prejudice.
Plaintiff is GRANTED leave to file his “First Amended Complaint” on or before April
16, 2015. 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 will be dismissed with
prejudice. FED. R. CIV. 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 a First 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 pleading
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 each defendant’s name where necessary to identify the actors. Plaintiff should refrain
from filing unnecessary exhibits.

Plaintiff should include only related claims in his new

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.

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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 $350.00 2 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. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: March 12, 2015
s/ STACI M. YANDLE
U.S. District Judge

2

Plaintiff has filed a motion for leave to proceed in forma pauperis that remains pending.
Effective May 1, 2013, the filing fee for a civil case increased from $350.00 to $400.00, by the addition of
a new $50.00 administrative fee for filing a civil action, suit, or proceeding in a district court. See
Judicial Conference Schedule of Fees - District Court Miscellaneous Fee Schedule, 28 U.S.C. § 1914,
No. 14. A litigant who is granted IFP status, however, is exempt from paying the new $50.00 fee.
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