Jacobo v. Holder et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 8/5/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IGNACIO JACOBO, # R-68486,

)
)
Plaintiff,
)
)
vs.
)
)
DAVID P. HOLDER,
)
MICHAEL P. ATCHISON,
)
TIMOTY R. VEATH,
)
BRANDON M. ANTHONY,
)
C/O CARTER,
)
C/O COWAN,
)
C/O NORMAN,
)
and UNKNOWN PARTY (Pontiac Warden), )
)
Defendants.
)

Case No. 15-cv-703-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff is currently incarcerated at Pontiac Correctional Center (“Pontiac”),
where he is serving a life sentence. He brings this pro se civil rights action pursuant to 42 U.S.C.
§ 1983, claiming that he was wrongfully found guilty of a disciplinary infraction while he was
confined at Menard Correctional Center (“Menard”).

He was punished with one year in

segregation, and was kept in punitive segregation for the entire year even though the disciplinary
action was expunged nearly two months before his term was up. This case is now before the
Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A.
According to the complaint, Plaintiff’s cell was searched on August 20, 2012
(Doc. 1, p. 7). Gang-related material was found in legal property box #17031. Defendant
Officer Holder issued a disciplinary report against Plaintiff for possession of this STG (Security
Threat Group) material (Doc. 1, pp. 7, 18).

Plaintiff immediately protested to Defendants

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Holder and Norman that this box did not belong to him, and in fact was the property of his
cellmate. He stated he was not a gang member, and asked the officers to check the property box
numbers to verify his claim. They refused to do so, and Defendant Norman loudly told Plaintiff
that he (Plaintiff) was not going to tell him how to do his job. Defendant Cowan signed off on
the disciplinary report, and ignored Plaintiff when he tried to show documentation that the box
was not his (Doc. 1, pp. 12, 18).
On August 23, 2012, Plaintiff appeared before the adjustment committee
(Defendants Veath and Anthony). Plaintiff’s ability to speak and understand English is limited,
but Defendants Veath and Anthony refused to allow him an interpreter. Plaintiff pled not guilty
to the disciplinary charge, and presented the hearing officers with his “State Loan Contract”
documents for his legal box and property box (Doc. 1, pp. 8, 19-20). These papers showed that
Plaintiff’s correspondence/legal box was numbered 552684, and his property box was #057169 –
neither of which matched the box (#17031) where the STG material was found. Disregarding
this evidence, Defendants Veath and Anthony found Plaintiff guilty. In addition to the year of
disciplinary segregation, Plaintiff’s punishment included the loss of six months of good conduct
credit and contact visits, and one year of C-Grade status and commissary restriction (Doc. 1, p.
21).
Plaintiff told Defendant Carter (Internal Affairs) that the property box where the
STG material was found did not belong to him, and asked him to investigate and verify the
documentation proving his claim. Likewise, Plaintiff spoke to Defendant Warden Atchison
about the mistake, and asked him to investigate and look at the evidence. However, neither of
these Defendants took any action, and Defendant Atchison approved the punishment
recommended by the adjustment committee. Plaintiff states that Menard officials routinely

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“rubber-stamp” the actions of their fellow officers to punish inmates for disciplinary infractions,
regardless of exonerating evidence.
At some point during Plaintiff’s time in segregation, he was transferred to
Pontiac. On June 29, 2013, as a result of Plaintiff’s grievance, the disciplinary action was
expunged (Doc. 1, p. 22).

However, the Unknown Party Defendant Warden of Pontiac

continued to hold Plaintiff in segregation for the remainder of the year-long term, despite
receiving notice that Plaintiff had been cleared of any wrongdoing (Doc. 1, p. 12).
Plaintiff raises claims that he was denied due process in the imposition of the
disciplinary sanctions, and that the punishment imposed was cruel and unusual. He was deprived
of access to the gym, yard, television, radio, and commissary, as well as physical access to the
law library and contact visits/phone calls with his family (Doc. 1, p. 13).

He now seeks

compensatory and punitive damages (Doc. 1, p. 16).
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.
Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has
articulated the following colorable federal causes of action for violation of his Fourteenth
Amendment rights, which shall receive further review:
Count 1: Defendants Holder, Norman, Cowan, Veath, and Anthony deprived
Plaintiff of a liberty interest without due process, by subjecting him to one year in
punitive segregation, where neither the disciplinary charge nor the finding of guilt
was supported by any evidence;
Count 2: Defendants Carter and Atchison allowed Plaintiff to be deprived of a
liberty interest without due process, when they ignored his requests for them to
review his exonerating evidence;
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Count 3: The Unknown Party Defendant-Warden of Pontiac deprived Plaintiff of
a liberty interest without due process, when he failed to abide by the Director’s
decision to expunge Plaintiff’s disciplinary charge, and unjustifiably kept Plaintiff
in punitive segregation for approximately two more months.
However, Plaintiff’s allegations that the Defendants subjected him to cruel and
unusual punishment in violation of the Eighth Amendment fail to state a claim upon which relief
may be granted. The conditions of Plaintiff’s confinement in segregation, as described in the
complaint, do not rise to the level of a serious deprivation of a basic human need, such as food,
medical care, sanitation, or physical safety, that would violate the Eighth Amendment. Rhodes v.
Chapman, 452 U.S. 337, 346 (1981). Plaintiff’s Eighth Amendment claims (Count 4) shall be
dismissed without prejudice.
Count 1 – Defendants Holder, Norman, Cowan, Veath, and Anthony
The fact that Plaintiff’s disciplinary charge and punishment were expunged from
his record indicates that Plaintiff eventually received due process. However, this relief came too
late to prevent him from serving out the majority of the year of segregation, and in fact was not
effective in leading to his release before the year was up (see Count 3).
Under certain limited circumstances, an inmate punished with segregation 1 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). The initial inquiry is
whether Plaintiff was denied procedural due process in the conduct of his disciplinary hearing.
See Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974) (to satisfy due process concerns, inmate
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
1

Plaintiff’s punishment also included the loss of good conduct credits. Because that sentence credit was
restored when Plaintiff’s “conviction” for the disciplinary infraction was expunged, the doctrine of Heck
v. Humphrey, 512 U.S. 477, 487 (1994), does not bar his quest for damages in a civil rights action.
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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 due process inquiry. Scruggs v. Jordan, 485 F.3d 934, 941
(7th Cir. 2007).
In Plaintiff’s case, the denial of a Spanish-English interpreter raises due process
concerns, but these are eclipsed by the absence of evidence of Plaintiff’s guilt. The facts as
described by Plaintiff indicate that the initial disciplinary charge filed by Defendants Holder,
Norman, and Cowan lacked evidentiary support. Then at his hearing, Plaintiff’s presentation of
exculpatory evidence showing that the box containing the gang-related material was not his
property suggests that Defendants Veath and Anthony found Plaintiff guilty without any
supporting evidence at all. See Supt., Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445 (1985);
Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994). Indeed, the letter ruling that Plaintiff’s
disciplinary report should be expunged cited “exonerating evidence (wrong box number cited)”
as one of the grounds for the action (Doc. 1, p. 22). This apparent denial of due process, coupled
with the length of Plaintiff’s disciplinary segregation, indicates that a factual inquiry into the
conditions of his segregation is appropriate. See Marion v. Columbia Corr. Inst., 559 F.3d 693,
697-98 (7th Cir. 2009).
Even if Plaintiff’s due process rights were violated during the adjudication of the
disciplinary charge against him, more is required in order to sustain a claim that he was deprived
of a protected liberty interest. 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.

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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 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”).
In Plaintiff’s case, he was confined in segregation for a full year. In the context of
Plaintiff’s life sentence, even a one-year period of disciplinary segregation, standing alone, may
not rise to the level of an unconstitutional deprivation of liberty. See Marion, 559 F.3d at 69798. However, at this stage of the case, the duration is long enough to trigger an inquiry into the
conditions of Plaintiff’s confinement in segregation. See Kervin v. Barnes, 787 F.3d 833, 835
(7th Cir. 2015). The deprivations Plaintiff lists in his complaint – denial of yard, gym, contact

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visits, and the like, may not amount to “atypical” or “significant” hardships when compared with
the conditions of administrative segregation. However, Count 1 shall proceed to allow Plaintiff
to further develop the facts supporting his due process claim.
Count 2 – Defendants Carter and Atchison
According to the complaint, neither Defendant Carter nor Defendant Atchison
was directly involved in bringing the disciplinary charge against Plaintiff, or in conducting the
hearing at which he was found guilty.

It appears that Plaintiff requested each of these

Defendants to investigate the matter and consider his exculpatory evidence only after the
disciplinary hearing was concluded and his punishment was recommended.
Section 1983 creates a cause of action based on personal liability and predicated
upon fault; thus, “to be liable under § 1983, the individual defendant must have caused or
participated in a constitutional deprivation.” Pepper v. Village of Oak Park, 430 F.3d 805, 810
(7th Cir. 2005) (internal quotations and citations omitted). At this stage, it is not clear whether
Defendant Carter or Defendant Atchison were sufficiently personally involved in the imposition
of Plaintiff’s punishment for liability to attach. See Burks v. Raemisch, 555 F.3d 592, 595-96
(7th Cir. 2009) (“public employees are responsible for their own misdeeds but not for anyone
else’s[;]” prisoner cannot impose liability on any official merely by appealing to the official for
help). However, Defendant Carter arguably had some responsibility to investigate possible
misconduct by prison officials. Defendant Atchison had to give final approval to Plaintiff’s
disciplinary sanctions before they were implemented. Giving liberal construction to Plaintiff’s
claims at this stage, Count 2 against Defendants Carter and Atchison shall be allowed to
proceed.

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Count 3 – Unknown Pontiac Warden
According to Plaintiff, the John Doe Defendant Pontiac Warden was informed of
the June 29, 2013, letter directing prison officials to expunge the disciplinary action against
Plaintiff (Doc. 1, p. 22). However, even though there was no longer any reason to hold Plaintiff
in segregation, the Pontiac Warden failed to release him back to general population. Plaintiff
had to endure nearly two more months in segregation before any action was taken. It appears
that he was only discharged from segregation when his original one-year “sentence” expired.
Based on these facts, Plaintiff may proceed with his due process claim against the
Unknown Pontiac Warden in Count 3.
Although the Plaintiff's claim against the Defendant Pontiac Warden arose in the
Central District of Illinois, where this Defendant may likely be found, he appears to be properly
joined as a Defendant in this action pursuant to Federal Rule of Civil Procedure 20(a)(2). Count
3 shall therefore remain in this action at this time. Plaintiff shall note, however, that as the case
progresses, the Court may deem it appropriate to sever Count 3 into a separate action, and
transfer the severed case to the Central District of Illinois.
Pending Motion
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to the
United States Magistrate Judge for further consideration.
Disposition
COUNT 4 is DISMISSED without prejudice for failure to state a claim upon
which relief may be granted.
The Clerk of Court shall prepare for Defendants HOLDER, ATCHISON,
VEATH, ANTHONY, CARTER, COWAN, NORMAN, and WARDEN of PONTIAC: (1)

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Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6
(Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the
complaint, and this Memorandum and Order to each Defendant’s place of employment as
identified by Plaintiff. If a Defendant fails to sign and return the Waiver of Service of Summons
(Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take
appropriate steps to effect formal service on that Defendant, and the Court will require that
Defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of
Civil Procedure.
With respect to a Defendant who no longer can be found at the work address
provided by Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work
address, or, if not known, the Defendant’s last-known address. This information shall be used
only for sending the forms as directed above or for formally effecting service.

Any

documentation of the address shall be retained only by the Clerk. Address information shall not
be maintained in the court file or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an
appearance is entered), a copy of every pleading or other document submitted for consideration
by the Court. Plaintiff shall include with the original paper to be filed a certificate stating the
date on which a true and correct copy of the document was served on Defendants or counsel.
Any paper received by a district judge or magistrate judge that has not been filed with the Clerk
or that fails to include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to
the complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States

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Magistrate Judge Stephen C. Williams for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate
Judge Williams for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all
parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment
of costs under § 1915, Plaintiff will be required to pay the full amount of the costs,
notwithstanding that his application to proceed in forma pauperis has been granted. See 28
U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C.
§ 1915 for leave to commence this civil action without being required to prepay fees and costs or
give security for the same, the applicant and his or her attorney were deemed to have entered into
a stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the
Court, who shall pay therefrom all unpaid costs taxed against Plaintiff and remit the balance to
Plaintiff. Local Rule 3.1(c)(1).
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

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for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: August 5, 2015

s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

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