PETERSON v. FLOWERS et al

Filing 17

ENTRY Discussing 16 Plaintiff's Motion for Reconsideration - There was in this case no manifest error of law or fact. The court did not misapprehend Peterson's claim, nor did it misapply the law to that claim. Accordingly, the post-judgment motion for reconsideration, treated as a motion to alter or amend judgment 16 , is denied. (SEE ENTRY). Signed by Judge Jane Magnus-Stinson on 11/6/2012. (copy to Plaintiff via US Mail) (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

LAWRENCE PETERSON,
Plaintiff,
vs.
MRS. FLOWERS Correctional Officer,
Disciplinary Screening Officer, BRAIN
SMITH Superintendent, T RAY
Correctional Officer/Disciplinary
Screening Officer, C A PENFOLD
Assistant Administrator, Greivance
Supervisor, GEORGE CRAIG Assistant
Administrator, Greivance Supervisor,
all sued in their individual, official
capacities, under color of state law,
Defendants.

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No. 1:12-cv-00564-JMS-TAB

Entry Discussing Motion for Reconsideration
On September 5, 2012, this action was dismissed pursuant to 28 U.S.C. §
1915A(b) because the amended complaint failed to state a claim upon which relief
may be granted. Plaintiff Lawrence Peterson filed a motion to reconsider on
September 13, 2012, arguing that the court erred in dismissing his case because he
did not seek to have his visitation privileges reinstated, but instead sought an order
declaring that he was denied due process when his visits were arbitrarily restricted
to non-contact.
The motion for reconsideration was filed within 28 days from the entry of
judgment on the clerk’s docket. Given the timing of the motion to reconsider
relative to the entry of final judgment, and given the arguments set forth in such
motion, the motion is treated as a motion to alter or amend judgment pursuant to
Rule 59(e) of the Federal Rules of Civil Procedure. See Borrero v. City of Chicago,
456 F.3d 698, 701-02 (7th Cir. 2006) (explaining that whether a motion filed within
10 days of the entry of judgment should be analyzed under Rule 59(e) or Rule 60(b)

of the Federal Rules of Civil Procedure depends on the substance of the motion, not
on the timing or label affixed to it).
The purpose of a motion to alter or amend judgment under Rule 59(e) is to
have the court reconsider matters "properly encompassed in a decision on the
merits." Osterneck v. Ernst and Whinney, 489 U.S. 169, 174 (1988). Rule 59(e)
"authorizes relief when a moving party 'clearly establish[es] either a manifest error
of law or fact' or 'present[s] newly discovered evidence.'" Souter v. International
Union, 993 F.2d 595, 599 (7th Cir. 1993) (quoting Federal Deposit Ins. Corp. v.
Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)).
Peterson alleged that Brian Smith, T. Ray, Penfold and Craig violated his
due process rights when they arbitrarily restricted Peterson to non-contact visits.
Peterson argues that under IND. CODE ' 11-11-5-4(4) his visits cannot be restricted
for disciplinary reasons (as was done in his case) or arbitrarily taken.
Peterson’s argument is apparently based on his misplaced belief that state
law creates a liberty interest in contact visits in favor of prisoners. But, the Seventh
Circuit has specifically rejected the theory that IND. CODE ' 11-11-5-4 creates rights
that are protected by the Due Process Clause. Duncan v. Levenhagen, 215 F.3d
1329, 2000 WL 557009, *1 -2 (7th Cir. 2000) (unpublished table decision). The Court
of Appeals explained:
This argument must be rejected under the Supreme Court's ruling in
Sandin v. Conner, 515 U.S. 472, 483 (1995), which makes it clear that
prisoners may no longer rely solely upon the use of mandatory
language to identify a protected liberty interest. Rather, a prisoner is
entitled to due process only when the restrictions imposed work an
“atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.”
Id. Peterson’s denial of contact visits claim is not protected under the due process
clause, nor is such a restriction a violation of the Eighth Amendment. See Nkrumah
v. Clark, 1992 WL 238336, *4 (7th Cir. 1992) (citing cases). In addition, the Indiana
Supreme Court has specifically held that there is no right to judicial review of
prison administrative disciplinary actions created by IND. CODE ' 11-11-5-4(4).
Zimmerman v. State, 750 N.E.2d 337 (Ind. 2001); Blanck v. Ind. Dep't of Corr., 829
N.E.2d 505 (Ind. 2005).
Peterson alleges that the claim against Mrs. Flowers is a separate claim
dealing with a separate issue and that this claim was not discussed. Peterson is
mistaken. The court understood Peterson to allege in the amended complaint [13]
that Mrs. Flowers is a disciplinary hearing officer and that she violated Peterson’s
due process rights during his disciplinary hearing by finding Peterson guilty of

misconduct with no evidence to support such a finding. Peterson states in his
motion to reconsider that his claim against Mrs. Flowers is based on Wolff v.
McDonnell, 418 U.S. 539 (1974), and Meeks v. McBride, 81 F.3d 717 (7th Cir. 1996).
Peterson’s complaint fails to allege that a viable liberty interest was taken as
a sanction for the guilty finding. See dkt 13 at p.9. The court reasonably understood
that the sanction imposed was restrictions on Peterson’s visitation. Id. No other
sanction was alleged. The due process clause is triggered when the government
deprives an individual of life, property or liberty. See Kentucky Department of
Corrections v. Thompson, 490 U.S. 454, 459-60 (1989). Because the allegations of
loss of visitation privileges do not implicate a recognized liberty or property interest,
Mrs. Flowers and the disciplinary hearing board were free to use any procedures or
no procedures at all. See Montgomery v. Anderson, 262 F.3d 641, 644 (7th Cir.
2001). In other words, Peterson was not entitled to the due process procedures
prescribed by Wolff or Meeks in the circumstances alleged in his complaint.
There was in this case no manifest error of law or fact. The court did not
misapprehend Peterson’s claim, nor did it misapply the law to that claim.
Accordingly, the post-judgment motion for reconsideration, treated as a motion to
alter or amend judgment [16], is denied.
IT IS SO ORDERED.

11/06/2012
Date: __________________
Distribution:
LAWRENCE PETERSON
892938
PENDLETON CORRECTIONAL FACILITY
Inmate Mail/Parcels
4490 West Reformatory Road
PENDLETON, IN 46064

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana