Hanks v. Doe et al
MEMORANDUM AND ORDER: The recruitment of counsel is not warranted at this time and the motion (Doc. 2) is DENIED without prejudice. The Complaint (Doc. 1) is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. I T IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff shall file his First Amended Complaint within 28 days of the entry of this order (on or before August 4, 2017). It is strongly recommended that Plaintiff use the form des igned for use in this District for civil rights actions. He should label the pleading First Amended Complaint and include Case Number 17-cv-330-SMY. Failure to file an amended complaint shall result in the dismissal of this action with prejudice. S uch dismissal shall count as one of Plaintiffs three allotted strikes within the meaning of 28 U.S.C. § 1915(g). In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form. ( Amended Pleadings due by 8/4/2017.). Signed by Judge Staci M. Yandle on 7/2/2017. (tkm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SEAN HANKS, # M-48627,
JANE DOE (Warden),
JOHN OR JANE DOE (Designee),
and MARCUS MYER,
Case No. 17-cv-330-SMY
MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff, currently incarcerated at Pontiac Correctional Center (“Pontiac”), has brought
this pro se civil rights action pursuant to 42 U.S.C. § 1983. His claims arose while he was
confined at Pinckneyville Correctional Center (“Pinckneyville”).
Plaintiff claims that
Defendants violated his Fourteenth and Eighth Amendment rights in connection with a
disciplinary action that was ultimately expunged. The Complaint is now before the Court for a
preliminary review pursuant to 28 U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the
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). Frivolousness is an objective standard that refers
to a claim that “no reasonable person could suppose to have any merit.” 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. 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
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 Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 821 (7th Cir. 2009).
Applying these standards, the Court finds that the Complaint is subject to dismissal
pursuant to § 1915A.
On June 28, 2015, Heck and Myer conducted a hearing on a disciplinary report filed
against Plaintiff for “Damage or Misuse of Property.” (Doc. 1, p. 2; Doc. 1-1, p. 2). They found
Plaintiff guilty of the infraction, and as a result, Plaintiff lost 2 months of good conduct credits.
He was also punished with 4 months in segregation, 4 months’ demotion to C-grade and ordered
to pay restitution. (Doc. 1, pp. 2-3).
Plaintiff alleges that Heck and Myer failed to afford him procedural due process in the
disciplinary hearing. (Doc. 1, p. 2). During all times relevant to these events, Plaintiff was “on
crisis and designated Seriously Mentally Ill” by the IDOC and prison mental health officials.
(Doc. 1, p. 3). However, mental health staff were not informed of the charges against Plaintiff or
summoned to participate in Plaintiff’s disciplinary proceeding, as Plaintiff claims is required by
IDOC departmental rule 504.80. (Doc. 1, p. 4).
After the disciplinary hearing, Plaintiff was transferred from Pinckneyville to an inpatient
psychiatric acute care unit at Dixon, and was on “mandatory suicidal observation.” (Doc. 1, p.
3). He never received the summary report of the disciplinary committee during his stay at
On July 31, 2015, he filed a grievance over the disciplinary action. On approximately
March 16, 2016, the IDOC’s Administrative Review Board recommended that Plaintiff’s ticket
be expunged and his good conduct credits restored. (Doc. 1, p. 4). Plaintiff attaches a copy of
the final summary report showing that the disciplinary matter was expunged, and states that his
sentence credit was restored to him. (Doc. 1, p. 5; Doc. 1-1, p. 2). However, Plaintiff complains
that his “suffering for months in segregation could not be restored[,] neither the pain and
suffering he experienced at that time.” (Doc. 1, p. 5).
Plaintiff asserts that Heck and Myers’ actions subjected him to cruel and unusual
punishment, in that he was placed in segregation while he was mentally ill. (Doc. 1, pp. 4-5).
He states that he “endured days of mental distress, pain and suffering” while in segregation.
(Doc. 1, p. 5). He further asserts that the Jane Doe Warden and the John/Jane Doe “Designee” 1
violated his rights by finalizing the disciplinary report before ensuring that “safeguards and
departmental rules were respected.” Id.
Plaintiff seeks declaratory and injunctive relief, as well as compensatory and punitive
damages. (Doc. 1, pp. 6-7).
Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into the following counts. 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. The
designation of these counts does not constitute an opinion as to their merit. Any other claim that
is mentioned in the Complaint but not addressed in this Order should be considered dismissed
Count 1: Fourteenth Amendment claim for deprivation of a liberty interest
without due process, in that Defendants failed to follow state rules/policies
requiring prison mental health staff to be notified and participate in the
disciplinary hearing process for Plaintiff as a seriously mentally ill prisoner;
Count 2: Eighth Amendment claim for subjecting Plaintiff to cruel and unusual
punishment by confining him in punitive segregation while he suffered from a
serious mental illness.
The Complaint fails to state a constitutional claim upon which relief may be granted with
respect to both counts. For these reasons, Plaintiff’s Complaint (Doc. 1) shall be dismissed
without prejudice. However, Plaintiff shall be allowed an opportunity to submit an amended
complaint to correct the deficiencies in his pleading. If the amended complaint still fails to state
a claim, or if Plaintiff does not submit an amended complaint, the entire case shall be dismissed
with prejudice and the dismissal shall count as a strike pursuant to § 1915(g). The amended
Plaintiff describes this individual as the Warden’s receptionist or secretary, who signs disciplinary
reports on the Warden’s orders at Pinckneyville.
complaint shall be subject to review under § 1915A.
Dismissal of Count 1 – Fourteenth Amendment
In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court enunciated minimal
procedural due process protections that must be provided to a prisoner in disciplinary
proceedings in which the prisoner loses good time, is confined to a disciplinary segregation, or is
otherwise subjected to some comparable deprivation of a constitutionally protected liberty
interest. Id. at 556-572.
Wolff required that inmates facing disciplinary charges for misconduct be
accorded  24 hours’ advance written notice of the charges against them;  a
right to call witnesses and present documentary evidence in defense, unless doing
so would jeopardize institutional safety or correctional goals;  the aid of a staff
member or inmate in presenting a defense, provided the inmate is illiterate or the
issues complex;  an impartial tribunal; and  a written statement of reasons
relied on by the tribunal. 418 U.S. at 563-572.
Hewitt v. Helms, 459 U.S. 460, 466 n.3 (1983). In addition, a disciplinary decision must be
supported by “some evidence.” Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994).
Here, Plaintiff does not claim that he was denied any of the Wolff procedural protections.
Instead, he bases his claim for denial of procedural due process on the regulations governing the
Illinois Department of Corrections, which provide for consideration of the mental health
implications of confining seriously mentally ill prisoners in segregation. Plaintiff asserts that his
due process rights were violated because Heck and Myer were required to inform and/or
summon mental health staff in connection with his disciplinary hearing, and failed to do so.
The section of the Illinois Administrative Code cited by Plaintiff reads as follows:
If the offender has been diagnosed as seriously mentally ill, the Adjustment
Committee may request the reviewing mental health professional to appear before
the Adjustment Committee to provide testimony relevant to his or her review.
ILL. ADMIN. CODE tit. 20, § 504.80(h) (emphasis added). Notably, the Code does not require the
Adjustment Committee to contact mental health staff regarding the disciplinary proceeding, but
states that the Committee “may” do so. An earlier provision of the Code defines the “reviewing
mental health professional” and his/her role. That section requires that when a prisoner who has
been diagnosed as seriously mentally ill is placed in investigative status or temporary
confinement, “the shift supervisor shall ensure a mental health professional completes a
documented review of the offender within 48 hours and provides his or her recommendation for
temporary confinement to the Chief Administrative Officer.”
ILL. ADMIN. CODE tit. 20,
Plaintiff’s Complaint does not reveal whether or not the mental health review under
§ 504.40 was performed in his case. The question of whether that required mental health review
would create an interest protected by the Fourteenth Amendment is not now before the Court.
Plaintiff does indicate that his disciplinary ticket was expunged because of a failure to comply
with one of the code provisions discussed above. (Doc. 1, p. 4). Nonetheless, the failure of
Heck and Myer to seek out testimony from the “reviewing mental health professional” for
Plaintiff’s disciplinary hearing does not violate either § 504.80(h) of the administrative code or
the Constitution. Even if a section of the administrative code was violated, this alone does not
create a civil rights claim, because a federal court does not enforce state law or regulations.
Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988) (en banc), cert. denied, 489 U.S.
1065 (1989); Pasiewicz v. Lake Cnty. Forest Preserve Dist., 270 F.3d 520, 526 (7th Cir. 2001).
Plaintiff does not point out any other aspect of his disciplinary hearing that failed to
comply with the Wolff due process protections.
If there was a failure to comply with
constitutional due process requirements, Plaintiff may include those factual allegations in an
Plaintiff should note that even though his disciplinary action was
apparently expunged based on some procedural flaw, the expungement is not determinative as to
whether the proceedings violated Plaintiff’s constitutional rights. Furthermore, even if there was
a due process violation during the hearing that violated the Fourteenth Amendment, Plaintiff still
may not have a viable civil rights claim. The circumstances under which an inmate punished
with segregation may pursue a claim for deprivation of a liberty interest without due process of
law are very limited. See Marion v. Columbia Corr. Inst., 559 F.3d 693, 697-98 (7th Cir. 2009).
An inmate has a due process liberty interest in being in the general prison population only
if the conditions of his or her disciplinary confinement impose “atypical and significant
hardship[s] . . . in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S.
472, 484 (1995); see also Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997) (in light of
Sandin, “the right to litigate disciplinary confinements has become vanishingly small”). For
prisoners whose punishment includes being put in disciplinary segregation, under Sandin, “the
key comparison is between disciplinary segregation and nondisciplinary segregation rather than
between disciplinary segregation and the general prison population.” Wagner, 128 F.3d at 1175.
The Seventh Circuit has identified two elements for determining whether disciplinary
segregation conditions impose atypical and significant hardships: “the combined import of the
duration of the segregative confinement and the conditions endured by the prisoner during that
period.” Marion, 559 F.3d at 697-98 (emphasis in original). The first prong of this two-part
analysis focuses solely on the duration of disciplinary segregation. For relatively short periods
of disciplinary segregation, inquiry into specific conditions of confinement is unnecessary. See
Lekas v. Briley, 405 F.3d 602, 612 (7th Cir. 2005) (56 days); Thomas v. Ramos, 130 F.3d 754,
761 (7th Cir. 1997) (70 days) (“a relatively short period when one considers his 12 year prison
sentence”). In these cases, the short duration of the disciplinary segregation forecloses any due
process liberty interest regardless of the conditions. See Marion, 559 F.3d at 698 (“we have
affirmed dismissal without requiring a factual inquiry into the conditions of confinement”).
Plaintiff states that he was punished with 4 months in disciplinary segregation. This
period of time is likely long enough to trigger an inquiry into the conditions of his segregation
confinement if there was a procedural flaw of constitutional dimension in the disciplinary
proceedings that placed him there. The Complaint, however, does not disclose whether Plaintiff
served the entire 4 months of segregation, nor does it say anything about the conditions he
endured there. Because of these omissions, the Court cannot determine whether there was a
constitutional violation in Plaintiff’s disciplinary hearing or whether the conditions of his
disciplinary segregation imposed an atypical and significant hardship on him. Count 1 shall
therefore be dismissed without prejudice for failure to state a claim upon which relief may be
granted. If Plaintiff believes that facts exist to support a constitutional claim for deprivation of a
liberty interest without due process, he may re-plead this claim in an amended complaint, in
accordance with the instructions below.
Dismissal of Count 2 – Eighth Amendment
In a case involving conditions of confinement in a prison, two elements are required to
establish a violation of the Eighth Amendment’s cruel and unusual punishments clause. First, an
objective element requires a showing that the conditions deny the inmate “the minimal civilized
measure of life’s necessities,” creating an excessive risk to the inmate’s health or safety. Farmer
v. Brennan, 511 U.S. 825, 834 (1994). The second requirement is a subjective element –
establishing a defendant’s culpable state of mind, which is deliberate indifference to a substantial
risk of serious harm to the inmate from those conditions. Farmer, 511 U.S. at 837, 842.
Plaintiff asserts that his confinement in segregation for 4 months amounted to cruel and
unusual punishment. He states that the placement in segregation while he suffered from a
serious mental illness caused him distress. (Doc. 1, p. 5). However, Plaintiff offers no further
facts regarding the conditions of his confinement in segregation, the nature of his mental illness
or how the conditions affected his mental or physical well-being. He does not say where he
served his segregation time, or disclose whether he requested that any prison officials remedy
any of the conditions that caused problems for him while in segregation. Consequently, the
Court cannot evaluate whether the circumstances of Plaintiff’s segregation violated the Eighth
For these reasons, Count 2 shall also be dismissed without prejudice for failure to state a
claim upon which relief may be granted. If Plaintiff wishes to further pursue this claim, he must
submit an amended complaint as instructed below.
Plaintiff has filed a motion for recruitment of counsel (Doc. 2). The dismissal of the
complaint without prejudice raises the question of whether Plaintiff is capable of drafting a
viable amended complaint without the assistance of counsel.
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 the plaintiff’s “literacy, communication skills, education
level, and litigation experience.” Id.
Plaintiff’s motion does not describe any effort on his part to secure counsel on his own.
Thus, the Court cannot conclude that he has made reasonable efforts to obtain legal
As to the second inquiry, Plaintiff reveals that he has a limited education, having obtained
a G.E.D. (Doc. 2-1, p. 1). He also states that he takes daily doses of psychotropic medication for
his serious mental illness. Nonetheless, the Complaint reflects that Plaintiff is articulate and
capable of stating the relevant facts and his legal claims. At this juncture, the Court is merely
concerned with whether this action can get out of the gate, so to speak. All that is required is for
Plaintiff to include more factual content regarding the conduct of his disciplinary hearing, and
the conditions of his confinement in segregation. Plaintiff alone has knowledge of these facts,
and no legal training or knowledge is required to set them down on paper.
recruitment of counsel is not warranted at this time and the motion (Doc. 2) is DENIED without
prejudice. The Court will remain open to appointing counsel as the case progresses.
The Complaint (Doc. 1) is DISMISSED without prejudice for failure to state a claim
upon which relief may be granted.
IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff
shall file his First Amended Complaint within 28 days of the entry of this order (on or before
August 4, 2017). It is strongly recommended that Plaintiff use the form designed for use in this
District for civil rights actions. He should label the pleading “First Amended Complaint” and
include Case Number 17-cv-330-SMY. The amended complaint shall present each claim in a
separate count as designated by the Court above. In each count, Plaintiff shall specify, by name, 2
each Defendant alleged to be liable under the count, as well as the actions alleged to have been
taken by that Defendant. New individual Defendants may be added if they were personally
involved in the constitutional violations. Plaintiff should attempt to include the facts of his case
in chronological order, inserting Defendants’ names where necessary to identify the actors and
the dates of any material acts or omissions.
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 contain all the relevant allegations in support of
Plaintiff’s claims and 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
Plaintiff may designate an unknown Defendant as John or Jane Doe, but should include descriptive
information (such as job title, shift worked, or location) to assist in the person’s eventual identification.
prejudice. Such dismissal shall count as one of Plaintiff’s three allotted “strikes” within the
meaning of 28 U.S.C. § 1915(g).
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.
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: July 2, 2017
s/Staci M. Yandle
United States District Judge
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