Conway v. Doe et al

Filing 11

ORDER DISMISSING CASE with prejudice as legallyfrivolous. Plaintiff is assessed a strike pursuant to § 1915(g). Signed by Judge Nancy J. Rosenstengel on 5/30/2017. (tjk)

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

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GREGORY CONWAY,
Plaintiff,
vs.
CHARLES HECK,
WILLIAMS JOHNSON, and
MARCUS MYERS,
Defendants.

Case No. 17 cv–0109 NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Gregory Conway, an inmate of the Illinois Department of Corrections (“IDOC”)
housed in Pinckneyville Correctional Center, brings this action for deprivations of his
constitutional rights pursuant to 42 U.S.C. § 1983. The claims in this lawsuit were severed from
another matter on February 3, 2017. (Doc. 1). The claims then underwent threshold screening on
March 7, 2017. (Doc. 6). The Court found that Plaintiff had failed to state a claim upon which
relief could be granted and dismissed the Complaint with leave to amend. (Doc. 6). Plaintiff filed
an Amended Complaint on March 31, 2017. (Doc. 8).
This case is now before the Court for a preliminary review of the Amended Complaint
pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint–

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(1) is frivolous, malicious, or fails to state a claim on which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
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, 102627 (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).
Upon careful review of the Amended Complaint and any supporting exhibits, the Court
finds it appropriate to exercise its authority under § 1915A; this action is once again subject to
summary dismissal.
The Amended Complaint
Plaintiff was transferred to Pinckneyville Correctional Center on May 21, 2015. (Doc. 8,
p. 5). Lieutenant Gooden told William Johnson that Plaintiff was a troublemaker and that
Pinckneyville should show Plaintiff “how we deal with troublemakers.” Id. Plaintiff alleges that
Gooden made that remark because Plaintiff had reported a sexual assault at Western Correctional
Center, where Gooden was employed. Id. Johnson turned to Plaintiff and said, “So you’re a
troublemaker, we got a way of dealing with trouble makers in Pinckneyville.” Id. Plaintiff was
then written a disciplinary report for talking on the bus, which he alleges was fabricated in
retaliation. Id.

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Plaintiff was served the disciplinary report written by Williams on May 22, 2015. Id.
Although the original Complaint alleged that Plaintiff filled out the bottom portion requesting
witnesses and gave it to a Corrections Officer (“C/O”) (Doc. 2, pp. 12-13), Plaintiff now alleges
that he merely called after the C/O who dropped the form off and that the C/O ignored him.
(Doc. 8, p. 5).
Plaintiff had his Adjustment Committee hearing on May 24, 2015. Id. Heck and Myers
presided over the hearing. Id. Plaintiff informed them he wished to call witnesses, but they told
him it was too late for that. Id. Plaintiff began arguing about the witnesses, but Heck cut him off,
saying,“They’re right, you are a troublemaker . . . guilty as charged, now get out of here.” Id.
Plaintiff was placed in segregation, where he was not allowed to make phone calls to
family members, watch television, eat food he had purchased from the commissary, or take
college classes, all of which are privileges afforded to inmates in general population. (Doc. 8,
p. 6). Plaintiff served 30 days in segregation. (Doc. 8, p. 16).
Plaintiff further alleges that he was placed in a cell with a seriously mentally ill inmate,
who had just come off suicide watch. (Doc. 8, p. 6). Plaintiff’s cellmate, Jones, immediately
began threatening to harm Plaintiff. Id. Plaintiff informed Estes, Walla, Meracle, and Lieutenant
Pearce about the threats on his life, but they ignored him. Id. Jones attacked Plaintiff, stabbing
him in the neck, chest, back, shoulder, arm, leg, as well as punching him in the face repeatedly.
Id. Plaintiff suffers from blurred vision and migraines, 1 aches and pains, as well as psychological
trauma. Id.

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In case No. 17-110, Plaintiff has alleged that the blurred vision and migraines he suffered during
this time period were attributable to the lack of proper eyeglasses. Plaintiff can only recover once for the
same injury.

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Discussion
Previously, the severance order designated two counts for this case:
Count 5 –

First Amendment retaliation claim against Johnson,
Myers, and Heck for Johnson filing false
disciplinary charges against Plaintiff on May 22,
2015, and Myers and Heck refusing to allow
Plaintiff to call witnesses at the hearing on those
charges and ultimately giving Plaintiff 30 days in
segregation in retaliation for the sexual assault
Plaintiff reported and the grievances he filed at
Western Illinois;

Count 6 –

Fourteenth Amendment due process claim against
Johnson, Myers, and Heck for Johnson filing a false
disciplinary charges against Plaintiff on May 22,
2015, and Myers and Heck refusing to allow
Plaintiff to call witnesses at the hearing on those
charges and ultimately giving Plaintiff 30 days
segregation.

As to Count 5, as the Court previously noted, to succeed on a First Amendment
Retaliation claim, a plaintiff must prove 1) that he engaged in conduct protected by the First
Amendment; 2) that he suffered a deprivation that would likely deter First Amendment activity
in the future; and 3) that the protected conduct was a “motivating factor” for taking the
retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).
The Court’s prior order found that Plaintiff had not adequately alleged a First
Amendment Retaliation claim because he had not adequately pleaded that Defendants in this
case were even aware of any First Amendment activity that Plaintiff had engaged in. In the
Amended Complaint, Plaintiff does not plead any new facts on this point; his allegations are
basically a restatement of the allegations in the original Complaint, which makes the Amended
Complaint a futile gesture. Bower v. Jones, 978 F.2d 1004, 1008 (7th Cir. 1992) (citing Wakeen
v. Hoffman House, Inc., 724 F.2d 1238, 1244 (7th Cir. 1983)). All Plaintiff has done here is

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reiterate his earlier conclusion that because Gooden knew of Plaintiff’s protected activity at
Western Illinois, all of the Pinckneyville defendants must have known as well, despite the
complete lack of any facts that would make this plausible. Given the lack of additional
allegations, the Court finds no reason to allow this claim to go forward at this time. The Court
can only conclude that Plaintiff does not actually have a legally valid claim here because he has
failed to provide additional facts when given the chance to amend; thus, the Court will now
dismiss this claim with prejudice as factually frivolous.
Turning to Plaintiff’s due process claim, when a plaintiff brings an action under § 1983
for a procedural due process violation, he must show that the state deprived him of a
constitutionally protected interest in “life, liberty, or property” without due process of law.
Zinermon v. Burch, 494 U.S. 113, 125 (1990). An inmate has a liberty interest in being in the
general population only if the conditions of his confinement pose “atypical and significant
hardship . . . in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,
484 (1995). In the Seventh Circuit, a prisoner only has a liberty interest if the conditions in
disciplinary segregation are substantially more restrictive than administrative segregation at the
most secure prison in that state. Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997). As the
Court previously noted, a short term in segregation may not state a claim at all. Lekas v. Briley,
405 F.3d 602, 612 (7th Cir. 2005).
As to Count 6, Plaintiff has provided additional allegations, but they are not sufficient to
save this claim. In fact, at least one of the additional allegations severely weakens his claim.
Plaintiff originally alleged that he submitted witness names prior to his hearing, but now he
claims that he merely tried to tell the guard who dropped off the disciplinary report about them.
He has not explained why he could not submit witnesses in writing at some time during the two

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days between the time he got the disciplinary report and the time of his Adjustment Committee
hearing. If Plaintiff did not submit witness names in writing prior to the hearing, then he was not
denied due process.
Of course, that is slightly beside the point. The Court originally dismissed Count 6
because it found that Plaintiff had not adequately pleaded that he had a liberty interest. The Court
noted that Plaintiff had only been sentenced to 30 days in segregation, a fact curiously missing
from the Amended Complaint, and that he had not alleged anything about the conditions in
segregation that would suggest that he experienced a significant or atypical hardship during such
a short stint in segregation. In an attempt to correct this problem, Plaintiff has now alleged that
he lost privileges like television and phone calls. But prisoners have no liberty interest in
privileges; the average prisoner can expect to lose and regain privileges throughout the course of
his incarceration due to discipline, lockdowns, or other reasons. The “atypical and significant
hardship” standard is meant to address conditions that actually harm prisoners or put them at risk
of harm. See Kervin v. Barnes, 787 F.3d 833, 836 (7th Cir. 2015) (district judge was correct to
dismiss suit where prisoner alleged he was sent to segregation for 30 days and did not suffer any
significant injury as a result of the placement). Loss of privileges does not plausibly suggest that
Plaintiff lost a liberty interest.
In an attempt to get around this point, Plaintiff has also alleged that his cellmate
physically attacked him. The Court did not construe this as a separate claim, because this claim is
already proceeding in Case No. 16-cv-1393, a fact unmentioned by Plaintiff. Plaintiff also has
forgotten to mention that the attack occurred on July 14, 2015. (Doc. 2, p. 16). As Plaintiff was
sentenced to 30 days of segregation on May 24, 2015, the Court presumes that his disciplinary
segregation ended on June 23, 2015, approximately three weeks prior to the attack. The Court

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therefore finds that the attack was not related to the disciplinary sanctions imposed on Plaintiff
and therefore cannot be the basis of his claim that he was deprived of a liberty interest. The
Court finds that its original conclusion that Plaintiff had not stated a liberty interest remains
correct. Moreover, as Plaintiff has been unable to provide facts which would make his due
process claim plausible, even after an attempt at amendment, the Court concludes that such facts
do not exist. This makes Plaintiff’s claim legally frivolous. The Court will therefore dismiss the
claim with prejudice.
Disposition
IT IS HEREBY ORDERED that this case is DISMISSED with prejudice as legally
frivolous. Plaintiff is assessed a strike pursuant to § 1915(g).
If Plaintiff wishes to appeal this dismissal, his notice of appeal must be filed with this
Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for leave
to appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal. See
FED. R. APP. P. 24(a)(1)(C). 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. P. 3(e); 28 U.S.C.
§ 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181
F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
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.

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The Clerk of Court is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: May 30, 2017
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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