Parker v. Duncan

Filing 6

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 4/15/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LEE HOLDEN PARKER,
Petitioner,
vs.

Case No. 3:15-cv-00326-DRH

STEPHEN B. DUNCAN
Respondent,
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Lee Parker is currently incarcerated in the Lawrence Correctional
Center in Sumner, Illinois. (Doc. 1 at 1.) Proceeding pro se, Parker has filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his
loss of good time credits and his placement in segregation stemming from a
prison adjustment committee ruling on Parker’s assault of his cellmate.

(Id.)

Parker alleges that the committee erred by not allowing him to confront witnesses
whose confidential testimony was used against him, and by not allowing him to
call his own witnesses “in support of his not guilty plea.” (Id. at 4.)
This matter is now before the Court for a preliminary review of the petition.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts provides that, upon preliminary review by the district judge, “[i]f it plainly
appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner.”
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Background
Since 1983, Parker has been in the custody of the Illinois Department of
Corrections, serving a life sentence without parole. (Doc. 1 at 1.) On July 18,
2014, Parker had an altercation with his cellmate, Frank Gomez, in their cell at
the Lawrence Correctional Center.

(Id. at 2.)

Internal affairs at the prison

investigated the altercation, yielding two separate accounts of the dispute between
Parker and Gomez. (Doc. 1-1 at 7-8.) Parker said that he and Gomez had a
verbal altercation that turned physical when Gomez slapped him on the side of
his head above his ear twice.

(Id.)

When Gomez tried to slap Parker again,

Parker blocked that slap, grabbed Gomez’s hand, and moved to grab him by the
throat, incidentally scratching him in the chest. (Id.) Gomez told a different tale –
he said that he criticized Parker’s conduct related to Parker’s sale of food to
another inmate, and Parker threatened to harm Gomez if Gomez did not stay out
of Parker’s business.

(Id.)

According to Gomez, Parker then stood from his

wheelchair and tried to grab Gomez and choke him, scratching Gomez with his
nails in the process.

(Id.)

Two other prisoners were interviewed by internal

affairs and they both corroborated Gomez’s account. (Id.) Based on the prison
investigation, Parker was ultimately charged with assault. (Doc. 1 at 2.)
On July 25, 2014, the prison adjustment committee held a hearing on the
assault charge. (Doc. 1-1 at 13.) Parker appeared, pled not guilty, and provided
a written statement. (Doc. 1 at 3.) According to Parker, he also sought to have
two other inmates testify in support of his plea, but testimony from those

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witnesses was not taken or considered by the adjustment committee. (Id. at 3-4.)
The adjustment committee found Parker guilty of assault and sanctioned him with
one year in segregation and the revocation of one year of good conduct credits or
statutory good time, among other sanctions. (Doc. 1-1 at 13.) The prison warden
signed off on the report on August 15, 2014. (Id. at 14.)
On August 26, 2014, Parker filed a grievance concerning the disciplinary
proceedings. (Doc. 1 at 4.) According to Parker, he received no response to his
grievance, so he sent letters following up on status on November 1, 2014 and
November 25, 2014. (Id. at 4-5.) These letters received no response, so Parker
mailed his grievance and his letters to the Administrative Review Board. (Id. at
5.) On December 24, 2014, the Board responded to Parker’s correspondence,
asking him to send a copy of the prison’s response to his grievance, and directing
him to contact his prison counselor to obtain a response. (See id. at 5-6.)
On March 25, 2015, Parker filed the instant § 2254 petition. (Id. at 1.)
Discussion
The Court begins with a preliminary issue, namely the exhaustion
requirement for § 2254 habeas claims.

“It is well-established that a prisoner

seeking a writ of habeas corpus must exhaust his state remedies” before seeking
federal relief.

Moleterno v. Nelson, 114 F.3d 629, 633 (7th Cir. 1997).

To

exhaust state remedies for a prison disciplinary claim, an Illinois prisoner must
first “exhaust[] [his] internal administrative remedies” through the prison
administrative process.

McAtee v. Cowan, 250 F.3d 506, 508-509 (7th Cir.

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2001). If unsuccessful, he must then exhaust any state court remedies by filing “a
complaint for an order of mandamus from an Illinois circuit court.” Id. If the
prisoner is dissatisfied with the state court’s ruling, he “must invoke one complete
round of the normal appellate process, including seeking discretionary review
before the state supreme court,” to conclusively exhaust his state remedies. Id.
Parker seems to have some exhaustion problems: his petition suggests that
he has given up on the prison administrative process and taken no further action
with Lawrence or the Administrative Review Board, and his petition says nothing
about any efforts to seek state mandamus relief. However, whether Parker has
taken any further steps within the prison since December 2014 or pursued any
state mandamus relief is unclear from the face of his pleading, meaning that it
would be premature for the Court to delve into exhaustion at this stage.

See

Walker v. Thompson, 288 F.3d 1005, 1005 (7th Cir. 2002) (district court should
not dismiss a suit sua sponte for failure to exhaust unless it is “plain from the
face of the complaint that the suit can be regarded as frivolous”).
Turning to Parker’s substantive habeas allegations, the Court finds it
appropriate to break the claims in Parker’s pro se complaint into numbered
counts, as shown below. The parties and the Court will use these designations in
all pleadings and orders, unless otherwise directed by the Court. The designation
of these counts does not constitute an opinion as to their merit.
COUNT 1: The revocation of Parker’s good conduct credits or statutory
good time was improper, as the adjustment committee hearing
lacked due process safeguards.

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COUNT 2: Parker’s placement in segregation was improper, as the
adjustment committee hearing lacked due process safeguards.
Concerning Parker’s claim for restoration of good time credit (Count 1), an
Illinois state prisoner has a “liberty interest in their good-conduct credits that
entitles them ‘to those minimum procedures appropriate under the circumstances
and required by the Due Process Clause to insure that the state-created right is
not arbitrarily abrogated.’” Eichwedel v. Chandler, 696 F.3d 660, 675 (7th Cir.
2012) (quoting Wolff v. McDonnell, 418 U.S. 539, 557 (1974)).

“In the prison

disciplinary context, due process requires only that the prisoner receive advance
written notice of the charges, an opportunity to present testimony and
documentary evidence to an impartial decision-maker, and a written explanation
for the discipline that is supported by some evidence in the record.” Piggle v.
Cotton, 344 F.3d 674, 677 (7th Cir. 2003). Here, Parker claims that he lost a
year of good time by way of the disciplinary hearing, and that he was “denied a
fair confrontation of the witnesses used against him” and was “denied witnesses
in support of his not guilty plea” at the hearing. (Doc. 1 at 4.) These allegations
are sufficient to state a good-credit claim for the limited purpose of initial review.
Accordingly, Count 1 will be allowed to proceed past preliminary screening.
While Parker’s good-credit habeas claim may proceed through preliminary
review, his habeas claim concerning placement in disciplinary segregation must
be dismissed at the gate. Punishments affecting the “duration of custody” must be
challenged under § 2254, while punishments affecting the “severity” of custody
“must be challenged under § 1983.” Montgomery v. Anderson, 262 F.3d 641,

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643-44 (7th Cir. 2001). Disciplinary segregation falls into the “severity” column,
and therefore must be “challenged under § 1983, in the uncommon circumstances
when it can be challenged at all.” Id.; see also Temple v. Davis, 84 F. App’x 642,
645 (7th Cir. 2003) (“Because disciplinary segregation affects the severity rather
than the duration of custody, [the prisoner] could not challenge that conviction
under § 2254.”) Accordingly, Parker’s habeas claim concerning the imposition of
disciplinary segregation is dismissed without prejudice.
In dismissing Parker’s segregation claim, the Court states no opinion on the
claim’s ultimate merit. Parker is free to re-file this claim as a separate claim
under § 1983 if he wishes. If he does so, Parker is warned that any § 1983 claim
would be subject to the normal rules and consequences attendant to § 1983
litigation, including the imposition of strikes for adverse rulings, a higher filing
fee, and a general prohibition against the filing of frivolous claims. 1
Disposition
IT IS HEREBY ORDERED that Count 1 of Parker’s petition for a writ of
habeas corpus shall proceed past preliminary screening.
IT IS FURTHER ORDERED that Count 2 is summarily DISMISSED from
the petition for a writ of habeas corpus without prejudice.

Before bringing a separate § 1983 claim regarding his placement in segregation, Parker is further
warned that any separate segregation claim would be premature at this juncture. “[T]he decision
of a prison disciplinary board may not lead to an award of damages if it is open to contest under §
2254 yet remains in force.” Montgomery, 262 F.3d at 644. Because Parker can achieve review of
the adjustment committee’s decision by way of his good credit claim, he is blocked from “use of §
1983” unless he “prevails in the § 2254 proceedings.” See id.

1

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IT IS FURTHER ORDERED that Respondent shall answer Count 1 of
Parker’s petition within thirty days of the date this order is entered (on or before
May 15, 2015). 2 This order to respond does not preclude the State from making
whatever waiver, exhaustion or timeliness arguments it may wish to present to the
Court. Service upon the Illinois Attorney General, Criminal Appeals Bureau, 100
West Randolph, 12th Floor, Chicago, Illinois shall constitute sufficient service.
IT IS FURTHER ORDERED that, pursuant to Local Rule 72.1(a)(2), this
cause is REFERRED to Magistrate Judge Clifford J. Proud for further pre-trial
proceedings. This entire matter shall be REFERRED to Magistrate Judge Clifford
J. Proud for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C.
§ 636(c), should all parties consent to such a referral.
Petitioner is ADVISED of his continuing obligations to keep the Clerk (and
Respondent) informed of any change in his whereabouts during this action. This
notification shall be done in writing and not later than seven days after a transfer
or other change in address occurs.
IT IS SO ORDERED.
Signed this 15th day of April, 2015.

Digitally signed
by David R.
Herndon
Date: 2015.04.15
15:49:53 -05'00'
United States District Judge

The response date ordered herein is controlling. Any date that CM/ECF should generate in the
course of this litigation is a guideline only.
2

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