Orozco v. Butler et al

Filing 34

ORDER: Counts 1, 2, and 4 of the First Amended Complaint (Doc. 10 ) survive screening. Counts 3, 5, and 6 are DISMISSED without prejudice. The Clerk of the Court is DIRECTED to ADD the Warden of Menard, Frank Lawrence, and the Warden of Pontiac, Ter i Kennedy, in their official capacities only, for the purpose of responding to discovery aimed at identifying the unknown correctional officers. The Clerk is FURTHER DIRECTED to terminate Defendants Godinez, McCarty, Anderson, and Stolworthy from the Courts Case Management/Electronic Case Filing (CM/ECF) system. Plaintiffs Motion for Status (Doc. 33 ) is DENIED as moot. The Clerk of Court is FURTHER DIRECTED to prepare for Butler, Carter, Hart, Scott, Cowan, Holte, Salinas, Pfister, Lawrence, a nd Kennedy: (1) 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 First Amended Complaint (Doc. 10), and this Memorandum and Order to each Defendant's place of employment as identified by Plaintiff. Signed by Chief Judge Nancy J. Rosenstengel on 6/17/2019. (bps)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

ROGELIO OROZCO,
#R26820,
Plaintiff,
vs.
KIMBERLY S. BUTLER,
MINN T. SCOTT,
REBECCA A. COWAN,
ERIN S. CARTER,
LESLIE MCCARTY,
SALVIDOR A. GODINEZ,
SCOTT T. HOLTE,
ABERARDO A SALINAS,
RANDY S. PFISTER,
TERRI ANDERSON,
DONALD STOLWORTHY,
JASON HART,
JOHN DOE #1, and
JOHN DOE #2,
Defendants.

Case No. 16-cv-0117-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff Rogelio Orozco, an inmate of the Illinois Department of Corrections (“IDOC”)
who is currently incarcerated at Western Illinois Correctional Center (“Western”), brings this civil
rights action pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional rights while at
Menard Correctional Center (“Menard”) and Pontiac Correctional Center (“Pontiac”). Plaintiff’s
claims arise from being convicted of a disciplinary charge and confined in disciplinary segregation.
He seeks monetary damages and injunctive relief expunging the underlying disciplinary reports.

1

Plaintiff’s First Amended Complaint (Doc. 10) is now before the Court for preliminary
review pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to screen
prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). Any portion
of a 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 must
be dismissed. 28 U.S.C. § 1915A(b). At this juncture, the factual allegations of the pro se
complaint are to be liberally construed. Rodriquez v. Plymouth Ambulance Serv., 577 F.3d 816,
821 (7th Cir. 2009).
This case was previously dismissed on initial review (Docs. 9 and 12) but was remanded
by the Seventh Circuit Court of Appeals for rescreening. (Doc. 32-1). The Seventh Circuit found
that Plaintiff should have been allowed to file an amended complaint on the potential claims
Plaintiff attempted to assert in the first Complaint and that the case should not have been dismissed
in its entirety. Id., p. 5. Plaintiff filed a First Amended Complaint (Doc. 10) prior to dismissal,
which adds several parties and appears to restate all of his claims. After remand, the Court views
the First Amended Complaint as the operative complaint and conducts its Section 1915A analysis
on that document. Should Plaintiff wish to reassert any of the claims dismissed in the original
Complaint which were not included in the First Amended Complaint, he may file a Second
Amended Complaint.
THE COMPLAINT
Plaintiff alleges the following: On April 22, 2014, Plaintiff was issued a disciplinary ticket
by Defendant Erin Carter, an Internal Affairs officer at Menard, for participation in Security Threat
Group (“STG”) or Unauthorized Organizational Activity as a member of the Latin King Nation
gang. (Doc. 10, pp. 4, 7-8). Defendants Scott and Hart sat as the Adjustment Committee on the

2

charge on April 24, 2014, and found Plaintiff guilty, sentencing him to three months of disciplinary
segregation, as well as loss of grade and some privileges. Id., p. 8. Plaintiff alleges that Scott and
Hart did not adequately investigate the allegations underlying the disciplinary ticket and were not
impartial, as they simply credited disciplinary ticket’s account. Id., pp. 9-14.
When the Adjustment Committee’s report from the April 24 hearing was forwarded to
Defendant Butler (warden of Menard at the time), she remanded it for additional information to
substantiate the charge and ordered the Adjustment Committee to impose much harsher sanctions
of one year in disciplinary segregation and longer loss of grade and privileges. Id., pp. 14-15. Scott
and Defendant Cowan subsequently held another hearing on May 9, 2014, at which they found
Plaintiff guilty and imposed harsher sanctions in line with what Butler had specified, including
one year in disciplinary segregation. Id., p. 16. Butler subsequently approved the Adjustment
Committee’s findings. Id., p. 17.
Plaintiff was subsequently given a punitive disciplinary transfer to Pontiac. On June 8,
2014, he filed a grievance regarding his disciplinary hearings. Id., p. 18. At some point, two
personal property room officers or supervisors—one at Menard (John Doe #1) and one at Pontiac
(John Doe #2)—confiscated or destroyed several boxes of Plaintiff’s excess legal materials,
including materials from his criminal case. Id., p. 18. Plaintiff believes that this was done at the
behest of Menard’s Intelligence Unit in retaliation for Plaintiff’s refusal to become a confidential
informant. Id., pp. 18-19.
Defendants McCarty and Godinez responded to Plaintiff’s June 8 grievance and directed
that the matter be remanded back to Carter for additional information on how Plaintiff was
identified as an active STG participant, and that the rehearing be held at Pontiac. Id., p. 19. Carter
subsequently re-wrote the disciplinary report, and Plaintiff requested a witness (Scott) be called at

3

the rehearing. Id., pp. 22-23. On November 20, 2014, Defendants Holte and Salinas held the
rehearing, refusing to call Scott as a witness and incorrectly noting in the subsequent report that
no witnesses had been requested. Id., p. 24. Holte and Salinas imposed the same punishments as
had been imposed at the May 9 hearing, which was approved by Pontiac’s warden, Defendant
Pfister. Id., pp. 25-26.
Defendants Anderson and Stolworthy subsequently reviewed and responded to Plaintiff’s
June 8 grievance in light of the rehearing and reduced Plaintiff’s sanctions down to the level
originally imposed at the April 24 hearing. Id., pp. 26-27.
While specifically disclaiming any conditions-of-confinement challenge, Plaintiff states
that while in punitive segregation he was subject to atypical hardships, including an unsanitary cell
and being housed with seriously mentally ill inmates who would prevent him from sleeping. Id.,
p. 31.
DISCUSSION
Based on the allegations in the Complaint, the Court finds it convenient to divide the claims
in this case into the following six Counts:
Count 1:

Fourteenth Amendment claim against Carter, Scott, Hart,
Butler, and Cowan, for deprivation of a liberty interest without
due process in connection with the April 24 and May 9, 2014
disciplinary hearings;

Count 2:

First Amendment retaliation claim against John Does #1 and 2,
for destroying his excess legal materials;

Count 3:

Fourteenth Amendment due process claim against Godinez and
McCarty, for failing to adequately intervene in response to
Plaintiff’s grievance regarding the May 9 hearing;

Count 4:

Fourteenth Amendment claim against Holte, Salinas, and
Pfister for deprivation of a liberty interest without due process,
for failing to hold an impartial disciplinary hearing and

4

reimposing the 1-year segregation term after the rehearing on
Plaintiff’s STG charges;
Count 5:

Fourteenth Amendment due process claim against Anderson
and Stolworthy, for failing to adequately intervene after
Plaintiff filed a grievance regarding the November 20 hearing;
and

Count 6:

Conspiracy claim against Defendants.

The parties and the Court will use these designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. Any claim that is mentioned in the
Complaint but not addressed in this Order is considered dismissed without prejudice as
inadequately pled under the Twombly 1 pleading standard.
Counts 1 and 4
Prison disciplinary hearings satisfy procedural due process requirements where an inmate
is provided: (1) advance (at least 24 hours before hearing) written notice of the claimed violation;
(2) the opportunity to be heard before an impartial decision maker; (3) the opportunity to call
witnesses and present documentary evidence (when consistent with institutional safety); and (4) a
written statement by the fact-finder of the evidence relied on and the reasons for the disciplinary
action. Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007) (citations omitted). That being said,
“even if the procedures are legitimate, it is impermissible to employ those procedures vindictively
or maliciously so as to deny a particular individual due process.” Ciechon v. City of Chicago, 686
F.2d 511, 517 (7th Cir. 1982). To satisfy due process, a hearing “must be a real one, not a sham or
a pretense.” Ryan v. Illinois Dep’t of Children & Family Servs., 185 F.3d 751, 762 (7th Cir. 1999).
Plaintiff has adequately alleged a claim against Hart and Scott relating to the April 24, 2014
Adjustment Board hearing. The allegation that Plaintiff participated in STG activities was based

1

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

5

on his identification by confidential sources. (Doc. 10, p. 41). “In order to guarantee the inmate’s
right to a fair hearing, ... a prison disciplinary board must accompany the use of a confidential
informant’s testimony with an indication that the informant is reliable.” Whitford v. Boglino, 63
F.3d 527, 535 (7th Cir. 1995). “Reliability can be established based on (1) the oath of the
investigating officer as to the truth of his report, (2) corroborating testimony, (3) a statement on
the record that the chairman of the [Adjustment Committee] had firsthand knowledge of the
sources and considered them reliable based on a past record of reliability, or (4) an in camera
review of material documenting the investigator’s assessment of the credibility.” Ashby v. Davis,
82 Fed. Appx. 467, 471 (7th Cir. 2003) (citing Whitford, 63 F.3d at 535-36). Here, Plaintiff has
alleged that there was no such indicia of reliability presented at the April 24 hearing. As such,
Plaintiff has stated a claim that his due process rights were violated.
As to Butler, Carter, Scott, and Cowan, Plaintiff has adequately stated a claim for relief
related to the May 9 hearing. Crediting Plaintiff’s assertions that Butler orchestrated a
predetermined result at Plaintiff’s May 9 hearing by having Carter rewrite the disciplinary report
and ordering Scott and Cowan to impose a harsher sanction the second time suggests that due
process rights may have been violated. As such, Count 1 survives as to Butler, Carter, Scott, and
Cowan in connection with the May 9, 2014 hearing.
Finally, Plaintiff has adequately stated a claim that he was denied due process by Holte,
Salinas, and Pfister in connection with his November 20 hearing. In addition to re-imposing the
heightened sanctions which were allegedly the improper result of Butler’s prior intervention, the
Adjustment Committee at Pontiac failed to call Plaintiff’s designated witness and incorrectly stated
that he had not requested any witnesses. While the right to call a witness in a disciplinary hearing

6

is by no means absolute, the facts as pled raise the possibility that Plaintiff was wrongfully denied
the opportunity. As such, Count 4 also survives screening.
Count 2
To state a First Amendment retaliation claim, a plaintiff must allege that: (1) he engaged
in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter
First Amendment activity; and (3) the protected activity he engaged in was at least a motivating
factor for the retaliatory action. Archer v. Chisholm, 870 F.3d 603, 618 (7th Cir. 2017) (citing
Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)).
Here, Plaintiff has narrowly managed to state a colorable claim against John Does #1 and 2.
The Seventh Circuit has at least suggested that a refusal to become a prison informant may be
considered protected speech, in that a prisoner has the right to tell the truth even if it is not what
officials want to hear. McKinley v. Schoenbeck, 731 F. App’x 511, 514 (7th Cir. 2018). At this
initial screening stage, the Court is unable to state that Plaintiff’s refusal to become an informant
is not protected speech as a matter of law. Destruction of a prisoner’s excess legal property,
especially if it pertains to his criminal case, would likely have a chilling effect on such speech and
Plaintiff has alleged that it was the motivating factor in the decision(s) to destroy his excess legal
property. Count 2 therefore survives screening.
Counts 3 and 5
Plaintiff fails to state any claims against Godinez, McCarty, Anderson, and Stolworthy.
Essentially, Plaintiff argues that in reviewing his grievances about the May 9 and November 20
disciplinary hearings, they “turned a blind eye” to the denials of due process in those grievances.
The mishandling or even the denial of a grievance will not support a constitutional claim.
“[A] state’s inmate grievance procedures do not give rise to a liberty interest protected by the Due

7

Process Clause.” Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). The Constitution
requires no procedure at all, and the failure of state prison officials to follow their own grievance
procedures does not, of itself, violate the Constitution. Maust v. Headley, 959 F.2d 644, 648 (7th
Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir. 1982). Godinez and McCarty
responded to Plaintiff’s grievance about the May 9 hearing, remanding the matter for additional
information and a new hearing before a new Adjustment Committee. Similarly, Anderson and
Stolworthy responded to Plaintiff’s complaints about the November 20 hearing, reducing the
penalty imposed. They clearly did not “turn a blind eye.” The fact that these were not the responses
Plaintiff desired does not make them a violation of his constitutional rights. As such, Counts 3 and
5 are dismissed without prejudice.
Count 6
Finally, Plaintiff makes a bare assertion that “[b]ased on information and belief, a
combination of the above[-]listed Defendants have conspired to commit a lawful act by criminal
or unlawful means, to accomplish an unlawful purpose.” (Doc. 10, p. 5). A § 1983 conspiracy
claim requires that “(1) the individuals reached an agreement to deprive [a plaintiff] of his
constitutional rights, and (2) overt acts in furtherance that actually deprived him of those rights.”
Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015); see also Walker v. Thompson, 288 F.3d
1005 (7th Cir. 2002) (“it is enough in pleading a conspiracy merely to indicate the parties, general
purpose, and approximate date, so that the defendant has notice of what he is charged with.”).
Plaintiff merely recites the general elements of conspiracy, with no indication of what
Plaintiff is actually alleging. Such “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice” to plead a cause of action. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). In addition to failing to specify what combination of the

8

Defendants he alleges participated, he also does not give any hint of what the purpose of the
agreement was or the general date thereof. As such, Plaintiff’s conspiracy claim is dismissed
without prejudice.
ADDITIONAL PARTIES
Frank Lawrence and Teri Kennedy, Wardens of Menard and Pontiac respectively, will be
added as defendants, in their official capacities only, for purposes of responding to discovery
aimed at identifying the unknown defendants. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 832 (7th Cir. 2009); FED. R. CIV. P. 21. Guidelines for discovery will be set by the
undersigned judge. Once the names of the unknown defendants are discovered, Plaintiff shall file
a motion to substitute the newly identified defendants in place of the generic designations in the
case caption and throughout the Complaint.
DISPOSITION
IT IS ORDERED that Counts 1, 2, and 4 of the Complaint survive screening. Counts 3,
5, and 6 are DISMISSED without prejudice.
The Clerk of the Court is DIRECTED to ADD the Warden of Menard, Frank Lawrence,
and the Warden of Pontiac, Teri Kennedy, in their official capacities only, for the purpose of
responding to discovery aimed at identifying the unknown correctional officers. The Clerk is
FURTHER DIRECTED to terminate Defendants Godinez, McCarty, Anderson, and Stolworthy
from the Court’s Case Management/Electronic Case Filing (“CM/ECF”) system.
Plaintiff’s Motion for Status (Doc. 33) is DENIED as moot.
IT IS ORDERED that the Clerk of Court shall prepare for Butler, Carter, Hart, Scott,
Cowan, Holte, Salinas, Pfister, Lawrence, and Kennedy: (1) Form 5 (Notice of a Lawsuit and
Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The

9

Clerk is DIRECTED to mail these forms, a copy of the Complaint (Doc. 1), 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.
IT IS ORDERED that, if a Defendant can no longer be found at the work address provided
by Plaintiff, the employer shall furnish the Clerk with that Defendant’s current work address, or,
if not known, his or her 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.
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
Administrative Order No. 244, Defendants need only respond to the issues stated in this
Merit Review Order.
IT IS ORDERED that this entire matter shall be REFERRED to a United States
Magistrate Judge for disposition, pursuant to Local Rule 72.2(b)(3) and 28 U.S.C. § 636(c), if all
parties consent to such a referral.
IT IS ORDERED that if judgment is rendered against Plaintiff, and the judgment includes
the payment of costs under Section 1915, Plaintiff will be required to pay the full amount of the
costs, whether or not his in forma pauperis application is granted. 28 U.S.C. § 1915(f)(2)(A).

10

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: June 17, 2019
___________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

11