Frayer v. Shawnee Correctional Center

Filing 7

IT IS HEREBY ORDERED that COUNTS 1 and, and the Complaint (Doc. 1), are DISMISSED without prejudice for failure to state a claim upon which relief may be granted. IT IS ORDERED that Defendant SHAWNEE CORRECTIONAL CENTER is DISMISSED with prejudice be cause the Complaint fails to state a claim against the prison for relief. IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to file a First Amended Complaint in this case. Should Plaintiff fail to file his First Amended Complaint within the allotted time, dismissal of this action will become with prejudice. (Amended Pleadings due by 10/30/2017). Signed by Judge David R. Herndon on 10/3/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
AUSTIN FRAYER,
#Y19383,
Plaintiff,
vs.
SHAWNEE CORRECTIONAL
CENTER,
Defendant.

Case No.

–00881 DRH

MEMORANDUM AND ORDER
HERNDON
Plaintiff Austin Frayer, an inmate who is currently incarcerated at Shawnee
Correctional Center (“Shawnee”), brings this civil rights action pro se pursuant to
42 U.S.C. § 1983.

(Doc. 1).

In the Complaint, Plaintiff alleges that Shawnee

officials failed to protect him from an attack by his cellmate on July 14, 2017.
(Doc. 1, pp. 5-7). When Plaintiff defended himself, he was issued a disciplinary
ticket for fighting. Id. He now seeks expungement of the ticket and monetary
damages. (Doc. 1, p. 8).
The Complaint is subject to preliminary review under 28 U.S.C. § 1915A,
which provides:
(a)
– 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)
– 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, 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. 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). The
Complaint does not survive screening and shall be dismissed.

In the Complaint, Plaintiff alleges that he was involved in a physical
altercation with his cellmate on July 14, 2017. (Doc. 1, p. 7). He asked Shawnee
staff members, including mental health professionals and officers, to move him to
another cell after his cellmate told Plaintiff to “leave the cell and not come back.”

Id. Officials ignored Plaintiff’s request. Id. He was subsequently attacked. Id.
Plaintiff defended himself and received a disciplinary ticket for fighting. Id. He
pleaded guilty to the rule violation and was punished with one month of C-grade

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and segregation. (Doc. 1, pp. 5-7). He now seeks expungement of the ticket and
monetary relief. (Doc. 1, p. 8).

To facilitate the orderly management of future proceedings in this case, and
in accordance with the objectives of Federal Rules of Civil Procedure 8(e) and
10(b), the Court deems it appropriate to organize the claims in Plaintiff’s pro se
Complaint (Doc. 1) into the following counts:
-

Eighth Amendment claim against Defendant for failing to
protect Plaintiff from an assault by his cellmate on July 14,
2017.

-

Fourteenth Amendment claim against Defendant for depriving
Plaintiff of a liberty interest without due process of law when
issuing him a disciplinary ticket for fighting on July 14, 2017,
and punishing him with one month of C-grade and segregation.

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

designations do not constitute an opinion regarding the merits of the claims.
Party
Plaintiff cannot maintain his § 1983 suit against Shawnee Correctional
Center (“Shawnee”). The prison is not considered a “person” under § 1983. See
42 U.S.C. § 1983. Shawnee is a division of the Illinois Department of Corrections,
a state agency that is immune from suit for money damages by virtue of the
Eleventh Amendment. See Billman v. Ind. Dep’t of Corr., 56 F.3d 785, 788 (7th
Cir. 1995).

See also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001)

(Eleventh Amendment bars suits against states in federal court for money
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damages).

Accordingly, Shawnee shall be dismissed from this action with

prejudice.

The Eighth Amendment failure-to-protect claim in Count 1 shall also be
dismissed. Prison officials have a duty to protect inmates from violence at the
hands of other inmates. Farmer v. Brennan, 511 U.S. 825, 833 (1994); Pinkston

v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). A claim based on the failure to
protect an inmate consists of an objective and a subjective component. Farmer,
511 U.S. at 834; Gevas v. McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015). The
objective component requires the plaintiff to demonstrate that he was
“incarcerated under conditions posing a substantial risk of serious harm.”

Farmer, 511 U.S. at 834.

The subjective component requires the plaintiff to

demonstrate that the defendant acted with deliberate indifference to his health or
safety. Id. at 834.
The Complaint does not satisfy either element of this claim.

Although

Plaintiff allegedly told officials that his cellmate threatened him, he named none of
these officials as defendants. It is also unclear when he relayed this information
to any of them, what he told each official, or how each official responded. The
Court is unable to assess the objective seriousness of the harm or the deliberate
indifference of any particular official.

Count 1 shall be dismissed without

prejudice.

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The Complaint supports no colorable Fourteenth Amendment due process
claim in Count 2, based on Plaintiff’s receipt of a disciplinary ticket for fighting on
July 14, 2017. Even allegations of a false ticket will not support a claim, if due
process is afforded. Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir. 1984);

Hadley v. Peters, 841 F. Supp. 850, 856 (C.D. Ill. 1994), aff’d 70 F.3d 117
(7th Cir. 1995). This is because due process safeguards associated with prison
disciplinary proceedings are sufficient to guard against potential abuses.
The Supreme Court has identified the following protections afforded to an
inmate facing a disciplinary hearing: (1) advance written notice of the charges
against him; (2) an opportunity to appear in person before an impartial hearing
body to contest the charges; (3) an opportunity to call witnesses and present
documentary evidence in his defense (subject to the discretion of correctional
officials); and (4) a written statement of the reasons for the disciplinary action
taken. Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974); Cain v. Lane, 857 F.2d
1139, 1145 (7th Cir. 1988). Not only must the requirements of Wolff be satisfied,
but the decision of the disciplinary hearing board must be supported by “some
evidence.” Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994).
Plaintiff does not assert that the disciplinary ticket he received for fighting
was false. (Doc. 1, pp. 5-7). He does not complain that his due process rights
were violated at the hearing on the ticket. Id. He admits that he was in a fight on
July 14, 2017, and he pleaded guilty to the violation. (Doc. 1, p. 7).

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Moreover, no due process protections are triggered in the first place, unless
Plaintiff was deprived of a liberty or property interest that is protected by the
Fourteenth Amendment.

Zinermon v. Burch, 494 U.S. 113, 125 (1990).

Punishment with one month of C-grade gives rise to neither a liberty nor a
property interest. See, e.g., Thomas v. Ramos, 130 F.3d 754, 762 n. 8 (7th Cir.
1997) (and cases cited therein) (no protected liberty interest in demotion to Cgrade status and loss of commissary privileges).
Segregation gives rise to a protected liberty interest only under very limited
circumstances. Hardaway v. Meyerhoff, 734 F.3d 740 (7th Cir. 2013) (quoting

Marion v. Columbia Corr. Inst., 559 F.3d 693, 697 (7th Cir. 2009)). Only where
an inmate is confined under conditions imposing an “atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life” will a
protected liberty interest arise.

Hardaway, 734 F.3d at 743 (citing Sandin v.

Conner, 515 U.S. 472, 484 (1995)). When making this determination, courts
consider two factors: “the combined import of the duration of the segregative
confinement and the conditions endured.” Id. at 743 (citing Marion, 559 F.3d at
697-98) (emphasis in original)).
Punishment with a single month in segregation rarely supports a
Fourteenth Amendment claim. Given that Plaintiff omits any description of the
conditions he faced in segregation, the Court is unable to assess whether the
conditions were sufficiently harsh to support any constitutional claim. Absent a
protected liberty interest, Plaintiff was entitled to no due process protections at

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the prison disciplinary hearing for the ticket he now challenges. Count 2 shall
also be dismissed without prejudice.

i n forma pauperis

1.

Plaintiff’s IFP Motion shall be addressed in a separate court order.

Plaintiff’s Motion for Recruitment of Counsel is DENIED without prejudice.
Although there is no constitutional or statutory right to counsel in federal civil
cases, Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010), a district court
may exercise its discretion and recruit counsel for an indigent litigant.

See

28 U.S.C. § 1915(e)(1); Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866–
67 (7th Cir. 2013). Plaintiff has filed an IFP Motion but has not yet provided the
Court with sufficient information to establish his indigence.
Assuming that he qualifies as such, the Court must consider whether the
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 he has done so, the Court must also 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).
Neither of these two requirements is satisfied.

First, Plaintiff did not

demonstrate that his efforts to secure counsel were unsuccessful. (Doc. 3, p. 1).

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According to the motion, he wrote letters to attorneys. Id. He did not attach
copies of any letters or responses to his motion.

(Doc. 3).

He also did not

indicate whether he received any responses. Id. Finally, Plaintiff did not state
that any attorney denied his request for representation. Id.
Second, Plaintiff has demonstrated his ability to prepare and file pleadings,
including a coherent complaint. He clearly articulates his thoughts, despite his
limited education.

His claims are straightforward and do not require special

expertise. Further, Plaintiff identifies no other impediments to pro se litigation,
such as other language, literacy, medical, or mental health barriers. (Doc. 3).
The Motion for Recruitment of Counsel is denied without prejudice.
Plaintiff may renew the motion as this case proceeds, if he believes it is necessary.

IT IS HEREBY ORDERED that COUNTS 1 and

, and the Complaint

(Doc. 1), are DISMISSED without prejudice for failure to state a claim upon
which relief may be granted.
IT IS ORDERED that Defendant SHAWNEE CORRECTIONAL CENTER is
DISMISSED with prejudice because the Complaint fails to state a claim against
the prison for relief.
IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to file a “First
Amended Complaint” in this case

.

Should

Plaintiff fail to file his First Amended Complaint within the allotted time,
dismissal of this action will become with prejudice. FED. R. CIV. P. 41(b). See

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generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v.
Kamminga, 34 F.3d 466 (7th Cir. 1994). Further, a “strike” will be assessed. See
28 U.S.C. § 1915(g).
Should Plaintiff decide to file an amended complaint, it is strongly
recommended that he use the forms designed for use in this District for such
actions. He should be careful to label the pleading, “First Amended Complaint,”
and he must list this case number (Case No. 17-00881-DRH) on the first page. To
enable Plaintiff to comply with this Order, the Clerk is DIRECTED to mail
Plaintiff a blank civil rights complaint form.
In the amended complaint, Plaintiff must, at a minimum, name the
individuals responsible for each constitutional violation as defendants in the case
caption.

Plaintiff must also describe the misconduct of each defendant that

resulted in the deprivation of his federal constitutional rights in the statement of
his claim. Plaintiff should attempt to include the facts of his case in chronological
order, inserting each defendant’s name where necessary to identify the actors.
Plaintiff should refrain from filing unnecessary exhibits or including any other
unrelated claims in his amended complaint.

Plaintiff is ADVISED that this dismissal shall not count as one of his
allotted “strikes” under the provisions of 28 U.S.C. § 1915(g).

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An amended complaint supersedes and replaces the original Complaint,
rendering the original 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 previous pleading, and Plaintiff must
re-file any exhibits he wishes the Court to consider along with the First Amended
Complaint. Finally, the First Amended Complaint is subject to review pursuant to
28 U.S.C. § 1915A.
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.

Digitally signed by
Judge David R. Herndon
Date: 2017.10.03
10:20:14 -05'00'
United States

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