Morris v. Houston et al

Filing 11

IT IS FURTHER ORDERED that, on or before February 8, 2016, Plaintiff shall file an amended complaint. Failure to file an amended complaint by the prescribed deadline will result in the dismissal of the action with prejudice, and a strike will be assessed for purposes of 28 U.S.C. § 1915(g). (Amended Pleadings due by 2/8/2016). Signed by Chief Judge Michael J. Reagan on 1/15/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN LEROY MORRIS,
No. 18164-045,
Plaintiff,
vs.
MS HOUSTON,
MR. BRADLY,
WARDEN CROSS,
MR. SMITH,
MR. SCHMITT,
MR. LAUGHLAN,
MR.MACHINO,
MR. WALKER, and
UNKNOWN PARTIES,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 15-cv-01367-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Steven Leroy Morris is an inmate currently housed at the Greenville
Federal Correctional Institution.

Pursuant to 28 U.S.C. § 1331 and

Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), Plaintiff brings
this action for deprivations of his constitutional rights with respect to his delayed
transfer from the Special Housing Unit (“SHU”) at Greenville to another prison.
This case is now before the Court for a preliminary review of the complaint
pursuant to 28 U.S.C. § 1915A. The Court is required to dismiss any portion of the
complaint that is legally frivolous, malicious, fails to state a claim upon which relief

Page 1 of 9

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).

Frivolousness is an objective

standard that refers to a claim that any reasonable person would find meritless. Lee v.
Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon
which relief 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. At this juncture, the factual allegations of the pro se complaint are to be
liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th
Cir. 2009).
The Complaint
As a preliminary matter, Plaintiff’s recent motion to amend the complaint by
interlineation (Doc. 7) must be denied. Plaintiff asks to add additional diary entries
reflecting that he still has not been transferred, and that he is getting “the runaround”
from prison officials. Local Rule 15.1 does not permit amendment by interlineation.
Plaintiff must file an amended pleading containing all claims against all defendants that
Plaintiff desires to pursue.

Because the information Plaintiff wants to add to the

complaint would not alter the claims asserted, the Court will proceed with the
preliminary review of the original complaint.

Page 2 of 9

Plaintiff takes issue with the delay of his transfer from Greenville and his longterm “isolation in the SHU” (Doc. 1, p. 5). According to the complaint and supporting
documentation, Plaintiff was placed in the SHU on September 3, 2015, after being
charged with assaulting another inmate. Following a hearing, he was convicted of the
disciplinary charge. As punishment, Plaintiff was to spend 21 days in disciplinary
segregation, lose 27 days of good-time credit, and the lose various other privileges (see
Doc. 1-2, p. 7-8). Months after his initial placement in the SHU and the date of his
disciplinary conviction, Plaintiff remains in the SHU.

However, documentation

indicates that as of October 16, 2015, Plaintiff was being held in the SHU pending
transfer, and that he was not being returned to the general prison population because of
his history of assaulting an inmate (see Doc. 1-2, p. 1).
Plaintiff applied for a transfer and has asked “every staff member” who has done
a walk through since September 3 and nobody can tell him the status of his transfer
request. Prison staff reply that they either do not know, or that the process has not been
completed, or that he should just be patient. Guards laugh and joke, telling Plaintiff to
be patient, noting that he is a “lifer.” When Plaintiff wanted to file an administrative
grievance about the delay he had difficulties getting the proper forms. From Plaintiff’s
perspective, it is cruel and unusual punishment when prison staff leave an inmate
wondering about his status indefinitely and give an inmate the runaround.
With respect to the conditions of confinement in the SHU, Plaintiff complains
that it is cruel and unusual punishment to keep him in “extended isolation,” where his
cellmate uses the toilet just feet away from Plaintiff.
Page 3 of 9

Plaintiff seeks compensatory damages, a written apology, and injunctive relief in
the form of improved procedures, including the provision of forms and copies of
submitted documents.
Based on the allegations in the complaint, the Court finds it convenient to divide
the pro se action into the following counts.
Count 1: Defendants have denied Plaintiff procedural due process in
violation of the Fifth Amendment relative to the delay and
runaround in processing his transfer; and
Count 2: Defendants subjected Plaintiff to cruel and unusual
punishment by subjecting him to long-term isolation in the
SHU.
Discussion
Counts 1 and 2 fail to state colorable constitutional claims and must be
dismissed. Dismissal shall be without prejudice.
Count 1
Count 1 alleges that Plaintiff has been denied procedural due process because his
transfer has been delayed and he has been given the runaround.
“An essential component of a procedural due process claim is a protected
property or liberty interest.” Domka v. Portage Cnty., Wis., 523 F.3d 776, 779 (7th Cir.
2008) (internal citations omitted). It is well-established that a transfer from one prison
to another with more adverse conditions of confinement generally does not affect a
protected liberty interest.

See, e.g., Meachum v. Fano, 427 U.S. 215, 225 (1976).

A

protected liberty interest arises only if the transfer “imposes atypical and significant

Page 4 of 9

hardships on the inmate in relation to the ordinary incidents of prison life.” Wilkinson v.
Austin, 545 U.S. 209, 223 (2005) (quoting Sandin v. Connor, 515 U.S. 472, 484 (1995)).
Insofar as Plaintiff is challenging the lack of process he has received in the
processing of his request for a transfer to a different prison, he is not entitled to relief
because “a prisoner has no due process right to be housed in any particular facility.”
Whitford v. Boglino, 63 F.3d 527, 532 (7th Cir. 1995); see also Pischke v. Litscher, 178 F.3d
497, 500 (7th Cir. 1999). Furthermore, the complaint does not suggest that Plaintiff is
being subjected to atypical or significant hardship.
Placement

in

segregated

confinement

for

substantial

periods

under

exceptionally harsh conditions might rise to the level of an “atypical and significant
hardship” and thus implicate the Due Process Clause. See Marion v. Columbia Corr. Inst.,
559 F.3d 693, 697–98 (7th Cir. 2009). However, the complaint does not describe or
remotely suggest that the conditions in the SHU are atypical. Plaintiff describes being
isolated, and he objects to being confined in a cell where his cellmate uses the toilet just
feet from him. Obviously, Plaintiff is not in solitary confinement, and prison cells, by
their very nature, are not spacious. The complaint, as drafted, fails to meet the Twombly
pleading standard.
No Fifth Amendment due process claim has been stated.
dismissed without prejudice.
Count 2
Count 2 also fails under the Twombly pleading standard.

Page 5 of 9

Count 1 will be

The Eighth Amendment to the United States Constitution protects prisoners
from being subjected to cruel and unusual punishment. U.S. CONST., amend. VIII. See
also Berry v. Peterman, 604 F.3d 435, 439 (7th Cir. 2010). Eighth Amendment protection
extends to conditions of confinement that pose a substantial risk of serious harm,
including health and safety. See Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984
(7th Cir. 2012).

Proving deliberate indifference requires more than a showing of

negligent or even grossly negligent behavior. Farmer v. Brennan, 511 U.S. 825, 835
(1994). Rather, the corrections officer must have acted with the equivalent of criminal
recklessness. Id. at 836–37. Once prison officials know about a serious risk of harm,
they have an obligation “to take reasonable measures to abate it,” even if harm is not
averted.

Borello v. Allison, 446 F.3d 742, 747 (7th Cir. 2006); see also Dale v. Poston, 548

F.3d 563, 569 (7th Cir. 2008).
As noted relative to Count 1, Plaintiff only describes being “isolated,” and he
objects to being “confined in a cell where his cellmate uses the toilet just feet from him.
Plaintiff is not in solitary confinement and he has not described conditions that suggest
his health and safety are endangered.

No Eighth Amendment claim has been

sufficiently pleaded.
Count 2 will be dismissed without prejudice.
Motion for Counsel
Plaintiff’s allegations and his motion for recruitment of counsel (Doc. 3) beg the
question, Can Plaintiff proceed pro se? Childress v. Walker,787 F.3d 433, 443 (7th Cir.
2015).
Page 6 of 9

Plaintiff Morris explains that he wrote to an attorney in Minnesota, but that
attorney indicated he charges $4,500 for any appeal, or Section 2255 or 2241 motion for
relief from judgment. Because Plaintiff cannot afford to pay that attorney, and given
that he has only a GED and no understanding of the law, he contends he needs counsel
to proceed with this case. Plaintiff also states that he is not mentally, emotionally or
physically able to prosecute this action, and that he is supposed to be on medication,
but he offers no other details to support those assertions.
There is no constitutional or statutory right to counsel in federal civil cases.
Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v. Doughty, 433 F.3d
1001, 1006 (7th Cir. 2006). Nevertheless, the district court has discretion under 28 U.S.C.
§ 1915(e)(1) to recruit counsel for an indigent litigant. Ray v. Wexford Health Sources, Inc.,
706 F.3d 864, 866–67 (7th Cir. 2013).
When a pro se litigant submits a request for assistance of counsel, the Court must
first consider whether the indigent plaintiff has made reasonable attempts to secure
counsel on his own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt v.
Mote, 503 F.3d 647, 654 (7th Cir. 2007)). If so, the Court must examine “whether the
difficulty of the case—factually and legally—exceeds the particular plaintiff’s capacity
as a layperson to coherently present it.” Navejar, 718 F.3d at 696 (quoting Pruitt, 503
F.3d at 655). “The question ... is whether the plaintiff appears competent to litigate his
own claims, given their degree of difficulty, and this includes the tasks that normally
attend litigation: evidence gathering, preparing and responding to motions and other
court filings, and trial.” Pruitt, 503 F.3d at 655. The Court also considers such factors as
Page 7 of 9

the plaintiff’s “literacy, communication skills, education level, and litigation
experience.” Id.
It does not appear that Plaintiff has attempted to recruit counsel to represent him
in this civil rights action; rather, he has only sought counsel in relation to his criminal
conviction.

For that reason alone, the motion fails.

Furthermore, the complaint,

although lacking the minimal factual underpinning to satisfy the Twombly pleading
standard, is well written, suggesting that Plaintiff, without the assistance of counsel, is
capable of drafting an amended complaint stating colorable claims. For these reasons,
Plaintiff’s motion for counsel will be denied without prejudice.
Disposition
IT IS HEREBY ORDERED that, Plaintiff’s motion to amend the complaint by
interlineation (Doc. 7) is DENIED without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s motion for counsel (Doc. 3) is
DENIED without prejudice.
IT IS FURTHER ORDERED that, for the reasons stated, COUNTS 1 and 2,
along with all DEFENDANTS, are DISMISSED without prejudice.
IT IS FURTHER ORDERED that, on or before February 8, 2016, Plaintiff shall
file an amended complaint. Failure to file an amended complaint by the prescribed
deadline will result in the dismissal of the action with prejudice, and a “strike” will be
assessed for purposes of 28 U.S.C. § 1915(g).
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
Page 8 of 9

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: January 15, 2016

s/ Michael J. Reagan
MICHAEL J. REAGAN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

Page 9 of 9