Bell v. Butler et al

Filing 8

ORDER DISMISSING CASE with prejudice, including COUNTS 1, 2, 3, and 4 against Defendants KIMBERLY BUTLER, DAVID EVELSIZER, TERRENCE JACKSON, and NICOLE MARSHALL, all for failure to state a claim upon which relief may be granted.Plaintiff is ADVISED that this dismissal shall count as one of his three allotted strikes under the provisions of 28 U.S.C. § 1915(g). Signed by Chief Judge Michael J. Reagan on 9/1/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TEAONE SHASHAWN BELL,
# B-59870,
Plaintiff,
vs.
KIMBERLY S. BUTLER,
DAVID L. EVELSIZER,
TERRENCE T. JACKSON,
and NICOLE L. MARSHALL,
Defendants.

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Case No. 16-cv-00201-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Now before the Court for consideration is the First Amended Complaint (Doc. 7) filed by
Plaintiff Teaone Bell, an inmate who is currently incarcerated at Pontiac Correctional Center
(“Pontiac”). Plaintiff challenges a disciplinary ticket he received for sexual misconduct at
Menard Correctional Center (“Menard”) on May 10, 2015 (Doc. 7, pp. 5-6). He takes issue with
the fact that a medical technician issued the ticket, and Menard’s Adjustment Committee relied
on her statement to find Plaintiff guilty of the rule violation. Plaintiff was punished with one
year of segregation, demotion to C-grade status, and commissary restrictions (id.).
Plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983 against Kimberly Butler
(warden),

David

Evelsizer

(hearing

committee

chairperson),

Terrence

Jackson

(hearing committee member), and Nicole Marshall (medical technician) for depriving him of a
protected liberty interest without due process of law under the Fourteenth Amendment. He seeks
monetary relief (id. at 6).

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Merits Review Under 28 U.S.C. § 1915A
This case is now before the Court for preliminary review of the First Amended Complaint
pursuant to 28 U.S.C. § 1915A. Under § 1915A, the Court is required to promptly screen
prisoner complaints, including amended complaints, to filter out nonmeritorious claims.
28 U.S.C. § 1915A(a). The Court is required to dismiss any portion of the amended 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
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.,

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577 F.3d 816, 821 (7th Cir. 2009). The First Amended Complaint does not survive review under
this standard and shall be dismissed.
First Amended Complaint
During his incarceration at Menard, Plaintiff alleges that a medical technician, named
Nicole Marshall, issued him a disciplinary ticket for sexual misconduct on May 10, 2015
(Doc. 1, pp. 5, 8). According to the report, Plaintiff “had his penis outside of the chuck hole
fondling himself” 1 as Marshall made her rounds to pass out medication on his wing (id. at 9).
Plaintiff attended a disciplinary hearing before Chairperson Evelsizer and Officer Jackson
on May 19, 2015 (id. at 5-6, 9). Relying on Marshall’s observations of Plaintiff, as described in
the disciplinary report, the Adjustment Committee found Plaintiff guilty of the rule violation.
Marshall’s account was uncorroborated by any other witness. Even so, Plaintiff was punished
with one year of segregation, demotion to C-grade status, and restrictions on his commissary
privileges (id. at 5, 9). On May 21, 2015, Kimberly Butler (warden) approved of the Adjustment
Committee’s decision (id. at 6).
Plaintiff now challenges the disciplinary action on due process grounds. He claims that
Marshall lacked authority to issue the disciplinary ticket because she is not an employee of the
Illinois Department of Corrections (“IDOC”); Evelsizer and Jackson failed to provide Plaintiff
with an impartial disciplinary hearing because they ultimately relied on Marshall’s statement to
find him guilty; and Butler approved of the recommended disciplinary action (id. at 5-6).
Plaintiff now sues all four defendants for denying him due process of law in violation of the
Fourteenth Amendment (id.). He seeks monetary damages (id. at 6)

1

As the Court pointed out in its initial screening order (Doc. 5, p. 3 n. 1), this lawsuit represents the third
action that Plaintiff has filed in federal court against prison officials who issued him disciplinary tickets
for sexual misconduct. See also Bell v. Hardy, et al., Case No. 15-cv-07944 (N.D. Ill., dismissed Feb. 19,
2016); Bell v. Butler, et al., Case No. 16-cv-00175-SMY (S.D. Ill. 2015).
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Discussion
In its initial screening order (Doc. 5), this Court identified the following counts for
consideration:
Count 1:

Defendants deprived Plaintiff of a protected liberty interest
without due process of law in violation of the Fourteenth
Amendment when they punished him with one year of
segregation following the issuance of a disciplinary ticket and
an unfair disciplinary hearing.

Count 2:

Defendants subjected Plaintiff to unconstitutional conditions of
confinement in violation of the Eighth Amendment when they
placed him in segregation for one year.

Count 3:

Defendants ignored a known risk that Plaintiff would attempt
to commit suicide in violation of the Eighth Amendment.

Count 4:

Defendants violated Plaintiff’s right to equal protection of the
law under the Fourteenth Amendment when they placed him
in segregation without adequate space, food, exercise, showers,
or commissary.

All four counts were dismissed without prejudice for failure to state a claim upon which relief
may be granted, and Plaintiff was granted leave to re-plead the claims in a First Amended
Complaint. He was warned that failure to do so within the allotted time would result in a
dismissal with prejudice and the assessment of a “strike” (Doc. 5, p. 9) (citing FED. R. CIV. P.
41(b); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466
(7th Cir. 1994); 28 U.S.C. § 1915(g)).
Plaintiff filed a timely First Amended Complaint (Doc. 7). However, the only claim he
now pursues is Count 1, which is addressed in this Order. He abandoned all other claims by
omitting them from his amended pleading. Counts 2, 3, and 4 shall therefore be dismissed with
prejudice.

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Count 1 – Due Process
In his First Amended Complaint, Plaintiff challenges his disciplinary ticket on the
following grounds: (1) the medical technician who issued the ticket lacked authority to do so;
(2) the Adjustment Committee relied on the medical technician’s statement when finding him
guilty of the rule violation; and (3) the warden approved the Adjustment Committee’s
recommendation for disciplinary action.
Plaintiff’s first challenge, at most, involves an alleged violation of state administrative
rules governing prisons, not a violation of the United States Constitution. See ILL. ADMIN. CODE,
tit. 20, § 504.30. Plaintiff maintains that the medical technician who issued him a disciplinary
report lacked authority to do so because she is not an IDOC employee. Section 504.30 obligates
any “employee” of the IDOC to “promptly prepare a disciplinary report,” if he or she observes
an offender “committing an offense, discovers evidence of its commission, or receives
information from a reliable witness of such conduct.” ILL. ADMIN. CODE, tit. 20, § 504.30(b).
Plaintiff asserts that the medical technician is not an employee of the IDOC. Even if the Court
accepts this allegation as true, however, the First Amended Complaint does not support a due
process claim.
Standing alone, the violation of a prison regulation does not give rise to a constitutional
claim. See Whitman v. Nesic, 368 F.3d 931, 935 n. 1 (7th Cir. 2004); Scott v. Edinburg, 346 F.3d
752, 760 (7th Cir. 2003) (§ 1983 provides a remedy for constitutional violations, not violations
of state statutes and regulations). Even allegations that a party violated a state mandatory rule do
not necessarily state a constitutional claim. White v. Henman, 977 F.2d 292, 295 (7th Cir. 1992)
(the violation of an administrative rule is not the same as a violation of the Constitution).

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Due process protections associated with prison disciplinary proceedings are generally
sufficient to guard against potential violations.

Hadley v. Peters, 841 F. Supp. 850, 856

(C.D. Ill. 1994), aff’d, 70 F.3d 117 (7th Cir. 1995) (citations omitted). A hearing before a
presumably impartial adjustment committee terminates any possible liability for the false or
erroneous disciplinary ticket. These due process safeguards include: (1) advance written notice
of the charges against the inmate; (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
the inmate’s 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).
Plaintiff’s second and third challenges to the disciplinary action involve the evidence
relied upon by the Adjustment Committee and the prison warden. Both accepted the medical
technician’s statement and found Plaintiff guilty of sexual misconduct. Because of this, Plaintiff
maintains that his disciplinary hearing was unfair. The test for determining whether the decision
of a prison disciplinary committee is adequately supported by the evidence is whether the
decision is supported by “some evidence.” Black v. Lane, 22 F.3d 1395 (7th Cir. 1994). By all
indications, Marshall’s statement was the only evidence available, other than Plaintiff’s own
testimony. The final hearing report indicates that no witnesses were requested, and Plaintiff does
not allege otherwise (Doc. 7, p. 9). The disciplinary report discloses no witnesses to the incident.
Under the circumstances, the Adjustment Committee (and, later, the warden) chose between two
different accounts of the incident, i.e., the medical technician’s and Plaintiff’s. They accepted
the statement of the medical technician, who was an eyewitness to the incident. Her statement

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satisfies the requirement that “some evidence” support the Adjustment Committee’s decision.
Cain, 857 F.2d at 1145.

Under the circumstances, Plaintiff has identified no due process

violation that occurred in connection with the disciplinary action.
And, to be clear, no right to due process is triggered in the first place, unless a protected
liberty interest is at stake. A protected liberty interest arises when Plaintiff’s confinement in
segregation “impose[s] an ‘atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.’” Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013)
(citing Sandin v. Conner, 515 U.S. 472, 484 (1995)). When making this determination, courts
generally consider two factors: “the combined import of the duration of the segregative [sic]
confinement and the conditions endured.” Id. at 743 (quoting Marion v. Columbia Corr. Inst.,
559 F.3d 693, 697-98 (7th Cir. 2009) (emphasis in original)). Although the length of Plaintiff’s
confinement in segregation may support a Fourteenth Amendment due process claim, he has said
nothing in the First Amended Complaint about the conditions that he endured. Given this, the
Court finds no protected liberty interest sufficient to trigger due process protections under the
Fourteenth Amendment. Accordingly, Count 1 shall be dismissed with prejudice against all of
the defendants at this time.
Disposition
IT IS HEREBY ORDERED that this action is DISMISSED with prejudice, including
COUNTS 1, 2, 3, and 4 against Defendants KIMBERLY BUTLER, DAVID EVELSIZER,
TERRENCE JACKSON, and NICOLE MARSHALL, all for failure to state a claim upon
which relief may be granted.
Plaintiff is ADVISED that this dismissal shall count as one of his three allotted “strikes”
under the provisions of 28 U.S.C. § 1915(g). Plaintiff’s obligation to pay the filing fee for this

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action was incurred at the time the action was filed, thus the filing fee of $350.00 remains due
and payable. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
If Plaintiff wishes to appeal this Order, he may file a notice of appeal with this Court
within thirty days of the entry of judgment. FED. R. APP. 4(A)(4). 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. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 72526 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien, 133 F.3d at
467. Moreover, if the appeal is found to be nonmeritorious, Plaintiff may also incur another
“strike.” A proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e)
may toll the 30-day appeal deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed
no more than twenty-eight (28) days after the entry of the judgment, and this 28-day deadline
cannot be extended.
The Clerk’s Office is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: September 1, 2016
s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

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