Crenshaw v. Baldwin et al
Filing
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MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 7/27/2017. (jaj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL P. CRENSHAW, # R-06537,
Plaintiff,
vs.
JOHN R. BALDWIN,
JACQUELINE A. LASHBROOK,
and ILLINOIS DEPARTMENT
of CORRECTIONS,
Defendants.
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Case No. 17-cv-637-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff, an Illinois Department of Corrections (“IDOC”) inmate currently incarcerated at
Menard Correctional Center (“Menard”), has brought this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff is serving a 50-year sentence for murder. The Complaint includes
claims that Defendants housed Plaintiff in an unconstitutionally small cell, deprived him of
adequate exercise and state pay due to lockdowns, and were deliberately indifferent to his
medical needs. 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.”
1
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 (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
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 one of Plaintiff’s claims survives threshold
review under § 1915A. The rest will be dismissed.
The Complaint
Plaintiff states that from March 2003 until April 2017, he was housed in the North One
cell house at Menard. (Doc. 1, p. 13). The cells in North One are less than 40 square feet in size,
and Plaintiff had to share the cell with another inmate. (Doc. 1, p. 6). According to Plaintiff,
these cells “have been deemed unconstitutional” because each inmate should have at least 50
2
square feet of living space. 1 Id. When some of the floor space is taken up by the bunks, sink,
toilet, shelves, and property or legal boxes, the remaining living area is allegedly reduced to
about 10 square feet. This space is inadequate for Plaintiff to exercise inside the cell, and
Plaintiff is ordinarily confined there up to 20-22 hours per day.
Plaintiff alleges that Menard had many extended lockdown periods from 2008 through
2017, including 65 days in 2016, 158 days in 2015, 223 days in 2014, and 35 days so far in 2017,
during which he was deprived of out-of-cell exercise. During lockdowns, he was confined in his
cell for 24 hours per day, and could not exercise in the small space which was shared with his
cellmate. (Doc. 1, p. 9).
Plaintiff was “forced” to take the bottom bunk in his cell, which has only about 28-30
inches of head space above the bed. (Doc. 1, p. 7). Due to Plaintiff’s height of 6 feet, 1 inch, he
needs about 36.5 or 38.5 inches of space in order to sit upright while on his bed. Because the bed
lacks this space, Plaintiff is forced to sit in a hunched-over or side-leaning position, which causes
chronic pain in his neck, upper back, and shoulders. He has no other place in the cell to sit,
because inmates are prohibited from sitting on their legal boxes or property boxes to avoid
damage to them. Id.
Plaintiff sought medical attention for his neck/shoulder/back pain between March 2015
and August 2016. (Doc. 1, pp. 10-11). He was not seen by any medical staff until June 17, 2016.
(Doc. 1, p. 11). He saw the prison doctor on August 25, 2016. (Doc. 1, p. 10). The doctor issued
Plaintiff an upper bunk permit, but otherwise “ignored” his complaints and gave him no other
treatment. Id. Plaintiff seeks to hold Warden Lashbrook liable for the failure to treat his ailments
because she allegedly knew about his problem through Plaintiff’s grievances.
1
Plaintiff cites to “3 National Institute of Justice, American Prisons and Jail 85 n.6 (1980),” and “A
Handbook on Jail Architecture 63 1975” in reference to this claim. (Doc. 1, p. 6).
3
During lockdowns, Defendants allegedly violated Plaintiff’s due process rights by
confiscating his state pay, when he was not the cause of the lockdowns and did not owe money.
(Doc. 1, p. 8).
Plaintiff raises another financial issue where “Jane or John Doe” confiscated money from
him after he received an out-of-date money order from outside the prison which was credited to
his account. Not realizing the money order had expired, Plaintiff spent three-fourths of the funds
at the commissary before his account was apparently debited for the improperly-credited money
order deposit. (Doc. 1, p. 8).
At some point, Plaintiff voluntarily signed himself in to protective custody (“PC”), where
he remained for “over 24 days.” (Doc. 1, p. 9). During his time in PC Intake, he had no access to
the yard or recreation. He claims that even inmates who are in disciplinary segregation are
entitled to yard/recreation time.
Based on these facts, Plaintiff seeks monetary damages and injunctive relief, including
orders requiring Defendants to cease taking inmates’ state pay during lockdowns, to allow
inmates at least one hour per day of out-of-cell yard/recreation, and to discontinue housing
prisoners two-to-a-cell in the North One and North Two cell houses. (Doc. 1, p. 12-13).
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
without prejudice.
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Count 1:
Eighth Amendment claim for housing Plaintiff and a cellmate in a
small (less than 40 square feet) cell, which does not allow enough
space to meet constitutional standards;
Count 2:
Eighth Amendment claim for depriving Plaintiff of sufficient outof-cell exercise to maintain his health during extended lockdowns,
when exercising in the small cell was not possible;
Count 3:
Eighth Amendment claim for requiring Plaintiff to be housed on
the lower bunk in his small cell, which did not allow him sufficient
space to sit upright, causing him to suffer from chronic pain in his
neck, upper back, and shoulders;
Count 4:
Eighth Amendment claim for deliberate indifference to Plaintiff’s
need for medical treatment for his painful neck, back, and shoulder
condition;
Count 5:
Fourteenth and Fifth Amendment claims for deprivation of state
pay without due process, for “confiscating” Plaintiff’s pay during
lockdowns;
Count 6:
Fourteenth Amendment claim for deprivation of property without
due process, for allowing him to spend funds credited to his inmate
trust account from an expired money order, then debiting his
account for the improperly credited funds;
Count 7:
Eighth Amendment claim for depriving Plaintiff of out-of-cell
exercise/recreation time during the approximately 24 days that
Plaintiff was housed in protective custody intake.
As explained below, Count 2 shall proceed for further review in this action against one
Defendant. Count 1 and Counts 3-7 shall be dismissed, however, for failure to state a claim upon
which relief may be granted.
Dismissal of Count 1 – Undersized Cell
In a case involving conditions of confinement in a prison, two elements are required to
establish violations 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
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v. Brennan, 511 U.S. 825, 834 (1994). The second requirement is a subjective element–
establishing a defendant’s culpable state of mind. Id.
Despite Plaintiff’s assertion that the approximately 40-square-foot cells at Menard “have
been deemed unconstitutional,” this Court is unaware of any authority supporting this
proposition. To the contrary, the Supreme Court held in its defining case addressing prison
overcrowding issues that housing two inmates in a cell designed for one was not per se
unconstitutional. Rhodes v. Chapman, 452 U.S. 337 (1981). The Supreme Court concluded that
“[a]t most . . . double celling inflicts pain,” id. at 348-349, but not the “unnecessary and wanton
infliction of pain” that violates the Eighth Amendment. Id. at 346. The Court found that the
Constitution “does not mandate comfortable prisons,” id. at 349, and only those deprivations
denying “the minimal civilized measure of life’s necessities,” id. at 347, are sufficiently grave to
form the basis of an Eighth Amendment violation. In reaching this conclusion, the Court stated,
Conditions must not involve the wanton and unnecessary infliction of pain, nor
may they be grossly disproportionate to the severity of the crime warranting
imprisonment . . . . But conditions that cannot be said to be cruel and unusual
under contemporary standards are not unconstitutional. To the extent that such
conditions are restrictive and even harsh, they are part of the penalty that criminal
offenders pay for their offenses against society.
Rhodes, 452 U.S. at 347. 2 See also Wilson v. Seiter, 501 U.S. 294 (1991).
As an objective factor in a conditions-of-confinement claim, double-celling alone does
not violate the Constitution. The amount of space per inmate has some relevance when
evaluating whether the totality of the conditions of confinement may amount to a serious
deprivation of basic human needs. See Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir. 1981).
A constitutional claim may arise if overcrowding causes other significant deprivations, such as
2
Plaintiff’s citations to the “National Institute of Justice, American Prisons and Jails,” and “A Handbook
on Jail Architecture” were apparently taken from a footnote to Justice Marshall’s dissenting opinion in
Rhodes, 452 U.S. at 371 n.4. (See Doc. 1, p. 6).
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inadequate medical or mental health care. See Brown v. Plata, 563 U.S. 493, 510-11 (2011)
(California prison system was required to reduce inmate population as part of remedial plan to
correct constitutional deficiencies in medical and mental health care). See also French v. Owens,
777 F.2d 1250, 1252-53 (7th Cir. 1985) (comparing cases, and affirming in part injunction
against double-celling in Pendleton, Indiana, prison, where combination of problems including
overcrowded conditions (cell space less than 24 square feet per inmate, with inadequate
ventilation and sanitation), unsanitary kitchen conditions, inadequate medical care, and overuse
of mechanical restraints violated the Eighth Amendment). The Supreme Court found no
constitutional violation for double-celling in Rhodes, where 63-square-foot cells were shared by
two inmates, in a facility that provided adequate furnishings and hot water. Rhodes, 452 U.S. at
341. Similarly, the Seventh Circuit found no violation for double-celling inmates in Pontiac
Correctional Center, where the cells ranged in size from 55 to 65 square feet and the facility was
otherwise adequate. Smith v. Fairman, 690 F.2d 122, 124, 126 (1982), cert. denied, 461 U.S. 946
(1983).
At least two Courts of Appeal have concluded that even triple-celling is not per se
unconstitutional. See, e.g. Hubbard v. Taylor, 538 F.3d 229 (3d Cir. 2008) (triple-celling of
pretrial detainees in single-man cells was rationally related to managing overcrowded prison, and
requiring detainees to sleep on mattresses on the floor was not a constitutional violation);
Strickler v. Waters, 989 F.2d 1375, 1382 (4th Cir. 1993) (double or triple celling is not per se
unconstitutional) (quoting Williams v. Griffin, 952 F.2d 820, 824-25 (4th Cir. 1991)). Likewise,
the Seventh Circuit in an unpublished opinion found that a complaint over triple-celling in FCIGreenville failed to state a constitutional claim, where the plaintiff did not connect any
deprivation of “basic human needs” or “the minimal civilized measure of life’s necessities” to
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the crowded conditions. McCree v. Sherrod, 408 F. App’x 990, 992 (7th Cir. 2011) (quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). The appellate court reiterated that a floor space
limitation of approximately 35 square feet per inmate does not by itself amount to cruel and
unusual punishment. McCree, 408 F. App’x at 992-93 (citing Rhodes, 452 U.S. at 348-49; Duran
v. Elrod, 760 F.2d 756, 759 (7th Cir. 1985); Smith v. Fairman, 690 F.2d 122, 124, 126 (7th Cir.
1982)).
In this case, Count 1 is grounded in Plaintiff’s claim that the size of his cell alone violates
constitutional standards. Because that is not the law, Count 1 shall be dismissed.
Count 2 – Deprivation of Ability to Exercise
The Seventh Circuit has noted that a “[l]ack of exercise could rise to a constitutional
violation where movement is denied and muscles are allowed to atrophy, and the health of the
individual is threatened.” Harris v. Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988); French v.
Owens, 777 F.2d 1250, 1255 (7th Cir. 1985), cert. denied, 479 U.S. 817 (1986). Some years
later, the appellate court stated:
In recent years we have not only acknowledged that a lack of exercise can rise to
a constitutional violation, French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1986),
but have concluded that “exercise is now regarded in many quarters as an
indispensable component of preventive medicine.” Anderson v. Romero, 72 F.3d
518, 528 (7th Cir. 1995). Given current norms, exercise is no longer considered
an optional form of recreation, but is instead a necessary requirement for physical
and mental well-being.
Delaney v. DeTella, 256 F.3d 679, 683-84 (7th Cir. 2001). See also Turley v. Rednour, 729 F.3d
645, 652-53 (7th Cir. 2013) (plaintiff stated Eighth Amendment claim where cumulative effect
of repeated lockdowns deprived him of yard privileges, and cell was too small for physical
activity).
Here, Plaintiff claims that the small size of his shared cell and the close proximity of the
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cellmates to one another in that space make it impossible for him to engage in meaningful
exercise inside the cell. Further, because of the frequent and prolonged lockdown periods at
Menard over the past several years, he has been deprived of the opportunity to use the yard or
any other out-of-cell area for recreation for significant periods of time. These conditions suggest
that Plaintiff has been (and may continue to be) subjected to an objectively serious risk to his
health.
As to the subjective component of a claim for unconstitutional conditions, it is unclear
whether Warden Lashbrook was made aware of Plaintiff’s complaints over his inability to
engage in meaningful physical activity. Absent such knowledge, Plaintiff may not be able to
show that she was deliberately indifferent to a risk of serious harm to his health from these
conditions, so as to hold her personally liable if an Eighth Amendment violation is found.
Section 1983 creates a cause of action based on personal liability and predicated upon fault; thus,
“to be liable under § 1983, the individual defendant must have caused or participated in a
constitutional deprivation.” Pepper v. Village of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005)
(internal quotations and citations omitted). As the current Warden of Menard, however,
Lashbrook is the proper Defendant from whom to seek injunctive relief relative to the conditions
described in Count 2. At this time, Count 2 may proceed against Lashbrook, in both her
individual and official capacity.
Count 2 shall be dismissed as to Defendants Baldwin and the Illinois Department of
Corrections, however. The Complaint contains no factual allegations to show that Baldwin was
personally aware or involved in creating or maintaining the conditions which placed Plaintiff’s
health at risk. Nor does it appear necessary to include Baldwin as a party in order to carry out
any injunctive relief which may be ordered, while the Menard warden remains in the action. See
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Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (proper defendant in a claim for
injunctive relief is the government official responsible for ensuring any injunctive relief is
carried out). Baldwin shall therefore be dismissed without prejudice from Count 2.
Finally, Plaintiff cannot maintain a suit for money damages against the Illinois
Department of Corrections, because it is a state government agency. The Supreme Court has held
that “neither a State nor its officials acting in their official capacities are ‘persons’ under
§ 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). See also Wynn v.
Southward, 251 F.3d 588, 592 (7th Cir. 2001) (Eleventh Amendment bars suits against states in
federal court for money damages); Billman v. Ind. Dep’t of Corr., 56 F.3d 785, 788 (7th Cir.
1995) (state Department of Corrections is immune from suit by virtue of Eleventh Amendment).
Injunctive relief may be ordered against the IDOC without running afoul of the Eleventh
Amendment, however, the Menard Warden may be ordered to implement any such relief if
Plaintiff eventually prevails. The Illinois Department of Corrections shall also be dismissed from
Count 2 without prejudice.
To summarize, Count 2 shall proceed for further consideration, but against Lashbrook
only.
Dismissal of Count 3 – Placement on Lower Bunk
Plaintiff contends that he was “forced” to be housed on the bottom bunk, which caused
him ongoing pain and physical problems because he could not sit up straight on his bunk and had
no other place in the cell where he could sit upright. Plaintiff does not identify any individual
among the Defendants, however, who was responsible for “forcing” him into this placement, nor
does he supply any factual narrative regarding how the cell and bunk assignment was made.
If Plaintiff brought this problem and the resulting health conditions to the attention of a
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Menard official, who then failed to remedy the problem, Plaintiff may have a viable deliberate
indifference claim based on his lower-bunk placement. But the current Complaint does not
contain sufficient allegations to support a claim for liability against any individual Defendant.
For this reason, Count 3 fails to state a claim upon which relief may be granted, and it shall be
dismissed at this time without prejudice.
Dismissal of Count 4 – Deliberate Indifference to Medical Needs
In order to state a claim for deliberate indifference to a serious medical need, an inmate
must show that he (1) suffered from an objectively serious medical condition; and (2) that the
defendant was deliberately indifferent to a risk of serious harm from that condition. An
objectively serious condition includes an ailment that significantly affects an individual’s daily
activities or which involves chronic and substantial pain. Gutierrez v. Peters, 111 F.3d 1364,
1373 (7th Cir. 1997). “Deliberate indifference is proven by demonstrating that a prison official
knows of a substantial risk of harm to an inmate and either acts or fails to act in disregard of that
risk. Delaying treatment may constitute deliberate indifference if such delay exacerbated the
injury or unnecessarily prolonged an inmate’s pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th
Cir. 2012) (internal citations and quotations omitted). See also Farmer v. Brennan, 511 U.S. 825,
842 (1994); Perez v. Fenoglio, 792 F.3d 768, 777-78 (7th Cir. 2015). However, the Eighth
Amendment does not give prisoners entitlement to “demand specific care” or “the best care
possible,” but only requires “reasonable measures to meet a substantial risk of serious harm.”
Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Further, a defendant’s inadvertent error,
negligence or even ordinary malpractice is insufficient to rise to the level of an Eighth
Amendment constitutional violation. See Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.
2008).
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In this case, Plaintiff’s chronic back, neck, and shoulder pain could satisfy the objective
element of an Eighth Amendment claim. The Complaint does not show, however, that any
Defendant was deliberately indifferent to Plaintiff’s need for treatment for this condition. There
does appear to have been some delay between Plaintiff’s initial requests for medical attention,
and the time when he was seen by a nurse and then the doctor. But there is no information to
suggest that any named Defendant was responsible for that delay.
Plaintiff states that in August 2016, the prison doctor issued him an upper bunk permit. It
would seem that this permit would alleviate the physical problems Plaintiff had experienced
from the bottom bunk placement. Nonetheless, Plaintiff complains that the doctor “ignored his
complaint” of pain. Plaintiff’s medical records also reflect that he was given pain medication
(although he complained it did not help). (Doc. 1-1, pp. 12-14). These facts do not support a
deliberate indifference claim against the doctor, if Plaintiff had attempted to assert such a claim.
Likewise, the allegations fail to state a deliberate indifference claim against Lashbrook,
who would ordinarily be entitled to rely on the judgment of the prison medical staff as to what
treatment was warranted for a prisoner’s condition. See Arnett v. Webster, 658 F.3d 742, 755 (7th
Cir. 2011) (If a prisoner is under the care of prison medical professionals, a non-medical prison
official “will generally be justified in believing that the prisoner is in capable hands”) (quoting
Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)). Plaintiff does not discuss the content or
frequency of any grievances that might have brought his complaints to the attention of
Lashbrook, thus there is nothing to support the proposition that she was aware of the doctor’s
alleged non-treatment yet took no action. See Perez v. Fenoglio, 792 F.3d 768, 782 (7th Cir.
2015) (prisoner stated deliberate indifference claim against non-medical prison officials who
failed to intervene despite their knowledge of his serious medical condition and inadequate
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medical care, as explained in his “coherent and highly detailed grievances and other
correspondences”). Finally, Plaintiff cannot rely on the doctrine of respondeat superior
(supervisory liability) to maintain a claim against Lashbrook, because this principle is not
applicable to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)
(citations omitted).
Similarly, the Complaint sets forth no facts to indicate that Baldwin was involved at all in
Plaintiff’s medical care (or lack thereof), or had any knowledge of Plaintiff’s medical issues.
And as discussed above under Count 2, Plaintiff cannot maintain a suit for damages against the
Illinois Department of Corrections.
For these reasons, Plaintiff fails to state a deliberate indifference claim upon which relief
may be granted against any of the Defendants. Count 4 shall therefore be dismissed without
prejudice.
Dismissal of Count 5 – Deprivation of State Pay
For this claim, Plaintiff faults “John or Jane Doe” (he does not include these parties as
Defendants) for “confiscating” his “un-assigned state pay” during institutional lockdowns. (Doc.
1, p. 8). He states that he “was not on any work assignment” at the time. Id.
An inmate does not have a constitutionally protected property or liberty interest in a
prison job, see DeWalt v. Carter, 224 F.3d 607, 613 (7th Cir. 2000), nor does a prisoner have a
constitutional right to compensation for working. See Vanskike v. Peters, 974 F.2d 806, 809 (7th
Cir. 1992) cert. denied, 507 U.S. 928 (1993) (prisoners may be required to work in prison, and
the Constitution is not violated by low pay, no pay, or disparities in the hours or rates of pay).
Further, prisoners do not have a constitutional right to participate in employment or rehabilitative
programs in prison. Garza v. Miller, 688 F.2d 480, 485-86 (7th Cir. 1982), cert. denied 459 U.S.
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1150 (1983).
Under the above authorities, Plaintiff has no constitutional claim to receive the “unassigned state pay” even if he was working at a prison job. Based on Plaintiff’s statement that he
was not on a work assignment, and the fact that the prison was on lockdown when his state pay
was “confiscated,” it also appears that he did not perform any work at the time in question.
Accordingly, Count 5 fails to state a claim upon which relief may be granted, and it shall be
dismissed with prejudice.
Dismissal of Count 6 – Recoupment of Mistakenly Credited Funds
For this claim, Plaintiff complains that “Jane or John Doe” deposited funds to Plaintiff’s
inmate trust account after a person outside the prison sent a money order to Plaintiff, without
checking first to see that the money order was out of date (more than 6 months old). (Doc. 1, p.
8). Plaintiff himself never saw the money order before this transaction was made and had no way
to know about the problem. Plaintiff spent most of the funds at the commissary. Some time later,
the funds were apparently “confiscated” by debiting Plaintiff’s account after the expiration date
on the money order was discovered.
As a Fourteenth or Fifth Amendment claim for the deprivation of property without due
process, this claim fails. Plaintiff has a right to be free from deprivations of his property by state
actors without due process of law. To state a claim under the due process clause, however,
Plaintiff must establish a deprivation of liberty or property without due process of law; if the
state provides an adequate remedy, Plaintiff has no civil rights claim. Hudson v. Palmer, 468
U.S. 517, 530-36 (1984) (availability of damages remedy in state claims court is an adequate,
post-deprivation remedy). The Seventh Circuit has found that Illinois provides an adequate postdeprivation remedy, in an action for damages in the Illinois Court of Claims. Murdock v.
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Washington, 193 F.3d 510, 513 (7th Cir. 1999); Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir.
1993); 705 ILL. COMP. STAT. 505/8 (1995). The opportunity to pursue such a claim in state court
means that a prisoner cannot maintain a federal constitutional claim, whether or not the prisoner
is successful in a Court of Claims action.
Plaintiff’s allegations also suggest that the officials who deposited the funds to his
prisoner account may have been negligent in their handling of the matter. Negligence, however,
does not violate the Constitution. Thus, a defendant in a § 1983 action can never be held liable
for negligence. Daniels v. Williams, 474 U.S. 327, 328 (1986); Zarnes v. Rhodes, 64 F.3d 285,
290 (7th Cir. 1995).
For these reasons, Count 6 fails to state a constitutional claim upon which relief may be
granted. The civil rights claims in Count 6 shall be dismissed with prejudice, however, that
dismissal shall not preclude Plaintiff from bringing his property or negligence claims in state
court.
Dismissal of Count 7 – Restriction on Exercise/Recreation in Protective Custody Intake
As noted under the discussion of Count 2, a deprivation of the opportunity to engage in
physical activity for a prolonged period of time may violate the Eighth Amendment. In contrast,
however, courts have held that short periods of exercise denial do not violate the Constitution.
See Harris v. Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988) (28-day denial not unconstitutional);
Phillips v. Norris, 320 F.3d 844 (8th Cir. 2003) (37 days in segregation without exercise “is
perhaps pushing the outer limits of acceptable restrictions” but does not create atypical and
substantial hardship); Vinson v. Texas Bd. of Corr., 901 F.2d 474, 475 (5th Cir. 1990)
(occasional denial of recreation claims were frivolous).
In this case, Plaintiff complains that he spent approximately 24 days in “Protective
15
Custody Intake,” and he was not allowed to have any out-of-cell exercise or recreation time
during that period. His chief objection to this restriction is that inmates who are in disciplinary
segregation are entitled to yard/recreation time, and there did not appear to be any reason why
this privilege was not available for inmates in protective custody. That is not the standard,
however, for evaluating a claim for deprivation of the ability to exercise.
Under the precedent of Harris v. Fleming, Plaintiff’s temporary inability to access the
yard or engage in out-of-cell exercise for approximately 24 days did not violate his constitutional
rights. Count 7, as pled in the Complaint, fails to state a claim upon which relief may be granted,
and shall be dismissed without prejudice.
Pending Motion
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to United States
Magistrate Judge Wilkerson for further consideration.
Disposition
COUNTS 1, 3, 4, and 7 are DISMISSED without prejudice for failure to state a claim
upon which relief may be granted. COUNTS 5 and 6 are DISMISSED with prejudice for failure
to state a claim upon which relief may be granted. The dismissal with prejudice of the civil rights
claim in COUNT 6 shall not preclude Plaintiff from bringing his property or negligence claims
in that count in state court.
BALDWIN
and
the
ILLINOIS
DEPARTMENT
of
CORRECTIONS
are
DISMISSED from this action without prejudice.
In order for COUNT 2 to proceed, the Clerk of Court shall prepare for LASHBROOK:
(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
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complaint, and this Memorandum and Order to Defendant’s place of employment as identified
by Plaintiff. If 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 Defendant, and the Court will require Defendant to pay the full costs
of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
If the Defendant cannot be found at the address provided by Plaintiff, the employer shall
furnish the Clerk with the Defendant’s current work address, or, if not known, the Defendant’s
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, nor disclosed by the Clerk.
Defendant is 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 Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Wilkerson for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all
parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that
his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
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
17
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 27, 2017
__________________________
NANCY J. ROSENSTENGEL
United States District Judge
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