Conway v. Doe et al

Filing 6

IT IS HEREBY ORDERED that Plaintiff's Complaint is DISMISSED without prejudice for failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff shall file a First Amended Complaint, stating any facts which may exist to support his claims of retaliation and due process, within 28 days of the entry of this order. (Amended Pleadings due by 4/4/2017). Signed by Judge Nancy J. Rosenstengel on 3/7/2017. (tjk)

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

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GREGORY CONWAY,
Plaintiff,
vs.
JOHN DOE,
JOHNSON, and
MYERS,
Defendants.

Case No. 17 cv–0109 NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Gregory Conway, an inmate in Pinckneyville Correctional Center, brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff seeks
declaratory relief and damages. This case is now before the Court for a preliminary review of the
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–
(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, 10261

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).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; this Complaint is subject to dismissal.
The Complaint
Plaintiff originally filed suit on December 28, 2016, in Case No. 16-cv-1393-SMY. The
claims in this suit were severed from that action on February 2, 2017, because they are unrelated
to the claims in that case. (Doc. 1). As specific to the claims in this case, Plaintiff has alleged that
he was sexually assaulted at Western Illinois Correctional Center, and that after he complained
about it, staff began harassing him. (Doc. 2, pp. 6-9). On May 21, 2015, Plaintiff was transferred
to Pinckneyville Correctional Center. (Doc. 2, p. 9). As he was getting on the bus, Gooden, one
of the officers who had been harassing Plaintiff at Western, said “I hope you don’t think your
[sic] getting away do you?” Id. When the bus stopped at Lincoln Correctional Center, Gooden
escorted Plaintiff over to the bus for Pinckneyville, where he told Correctional Officer Johnson
that Plaintiff was a troublemaker and to “show him how we deal with troublemakers.” (Doc. 2,
p 10). Johnson then wrote Plaintiff an allegedly false disciplinary report based on his conduct on
the bus to Pinckneyville. (Doc. 2, p. 11).
Plaintiff received the disciplinary report on May 22, 2015. (Doc. 2, p. 12). He
immediately filled out the lower portion of the report to request inmates Parnell, Jackson,

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Nuckles, Chadwick, and Clark testify at the disciplinary hearing. (Doc. 2, pp. 12-13; Doc. 2-2,
pp. 3-4). Plaintiff’s adjustment committee hearing was on May 24, 2015. (Doc. 2, p. 13).
Plaintiff told John Doe and Myers that he had requested witnesses. Id. Plaintiff then attempted to
give his list of witnesses to Myer, who told him that it was too late for that. Id. When Plaintiff
protested, John Doe stated that “Their [sic] right, you are a troublemaker. Guilty as charged now
get out of here.” (Doc. 2, p. 14). Plaintiff went to segregation for 30 days as punishment. Id.
Discussion
Judge Yandle’s threshold order in the original case (Case No. 16-cv-1393-SMY) severed
two counts into this action:
Count 5 –

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

Count 6 –

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

As to Plaintiff’s Count 5, 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). When a prisoner alleges retaliation, it is not enough to simply
state the cause of action. The inmate must identify the reasons that retaliation has been taken, as
well as “the act or acts claimed to have constituted retaliation,” so as to put those charged with
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the retaliation on notice of the claim. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). The
inmate need not plead facts to establish the claim beyond doubt, but need only provide the bare
essentials of the claim, specifically, the reason for the retaliation and the acts taken in an effort to
retaliate. Id.
Here, Plaintiff has not adequately alleged a First Amendment retaliation claim.
Specifically, he has not alleged that any of the defendants were retaliating against him because
he engaged in protected conduct. Instead, he alleges that Gooden told Johnson that Plaintiff was
a troublemaker. The term “troublemaker” does not necessarily imply that Plaintiff filed
grievances or otherwise engaged in protected conduct. It could have meant any number of things.
Plaintiff does not allege that Gooden specifically told Johnson about Plaintiff’s grievance activity
or that Johnson would have any reason to know about Plaintiff’s grievance activity. Plaintiff
does not allege that he filed any grievances on Johnson specifically, and the timeline he provided
suggests it would have been impossible prior to the issuance of the disciplinary report. And
although Plaintiff has alleged that Myers and Doe failed to call his witnesses, he has not alleged
that either one of them even spoke with Johnson, much less Gooden. On these facts, assuming
the other two elements are met, there is no way the Court could conclude that Plaintiff’s
protected conduct was the motivating factor behind the discipline he received. Plaintiff may have
a claim against Gooden, but not in this case, as he has been dismissed as a defendant.
Plaintiff’s claim in Count 6 also fails. When a plaintiff brings an action under § 1983 for
procedural due process violations, 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 due process liberty interest in being in the general
prison population only if the conditions of his confinement impose “atypical and significant

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hardship . . . in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,
484 (1995). The Seventh Circuit Court of Appeals has adopted an extremely stringent
interpretation of Sandin. In this Circuit, a prisoner in disciplinary segregation at a state prison has
a liberty interest in remaining in the general prison population only if the conditions under which
he or she is confined 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). If the
inmate is housed at the most restrictive prison in the state, he or she must show that disciplinary
segregation there is substantially more restrictive than administrative segregation at that prison.
Id. In the view of the Seventh Circuit Court of Appeals, after Sandin “the right to litigate
disciplinary confinements has become vanishingly small.” Id. Indeed, “when the entire sanction
is confinement in disciplinary segregation for a period that does not exceed the remaining term
of the prisoner’s incarceration, it is difficult to see how after Sandin it can be made the basis of a
suit complaining about a deprivation of liberty.” Id.
Here, the only deprivation that Plaintiff has alleged is that he was sent to segregation for
30 days. First, 30 days is a short period of confinement in segregation, and may not be long
enough to trigger constitutional protection. Lekas v. Briley, 405 F.3d 602, 612 (7th Cir. 2005)
(“But while Lekas’s 90 day segregation was longer than the 19 day confinement in Williams and
even the 70 day confinement in Thomas it was still not so long as to work an atypical and
significant hardship.”) (citations omitted); Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995).
While the Seventh Circuit has clarified that a term of segregation shorter than 6 months may
state a claim, whether it will or not depends on the conditions of confinement a prisoner is
exposed to during that time. 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

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not suffer any significant injury as a result of the placement). Plaintiff has not described the
conditions in segregation at all or otherwise suggested that they were more restrictive then the
most restrictive prison in the state or that he was subjected to significant hardship as a result of
the placement. All he has alleged was that he was sent to segregation for 30 days. Without more,
his claim fails.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s Complaint is DISMISSED without
prejudice for failure to state a claim upon which relief can be granted.
IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff
shall file a First Amended Complaint, stating any facts which may exist to support his claims of
retaliation and due process, within 28 days of the entry of this order (on or before April 4, 2017).
An amended complaint supersedes and replaces the original complaint, rendering the original
complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1 (7th Cir.
2004). The Court will not accept piecemeal amendments to the original complaint. Thus, the
First Amended Complaint must stand on its own, without reference to any other pleading. Should
the First Amended Complaint not conform to these requirements, it shall be stricken. Plaintiff
must also re-file any exhibits he wishes the Court to consider along with the First Amended
Complaint. Failure to file an amended complaint shall result in the dismissal of this action with
prejudice. Such dismissal shall count as one of Plaintiff’s three allotted “strikes” within the
meaning of 28 U.S.C. § 1915(g).
Plaintiff is warned, however, that the Court takes the issue of perjury seriously, and that
any facts found to be untrue in the First Amended Complaint may be grounds for sanctions,
including dismissal and possible criminal prosecution for perjury. Rivera v. Drake, 767 F.3d 685,

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686 (7th Cir. 2014) (dismissing a lawsuit as a sanction where an inmate submitted a false
affidavit and subsequently lied on the stand).
No service shall be ordered on any Defendant until after the Court completes its § 1915A
review of the First Amended Complaint.
In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED
to mail Plaintiff a blank civil rights complaint form.
IT IS SO ORDERED.
DATED: March 7, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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