HOLLEMAN v. GILLEY et al

Filing 24

ORDER granting 12 Motion to Dismiss for Failure to State a Claim against the Moving Defendants. The Moving Defendants were the only defendants in the original complaint. That Complaint is therefore DISMISSED and these two defendants may be termi nated on the docket. However, because of the supplemental complaint, this ruling does not resolve all claims against all parties and no partial final judgment shall issue as to the dismissal of the original Complaint. Signed by Judge Tanya Walton Pratt on 3/26/2015. (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ROBERT HOLLEMAN,

)
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Plaintiff,
)
)
v.
)
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JERRY GILLEY, individually and in his
)
official capacity as Captain at the Pendleton
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Correctional Facility, DUSHAN ZATECKY,
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individually and in his official capacity as
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Superintendent of the Pendleton Correctional
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Facility; TOM FRANCUM, individually and in )
his official capacity as Internal Affairs;
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ANDREW COLE, individually and in his
)
official capacity as Assistant Superintendent of )
Re-Entry; DUANE ALSIP, individually and in )
his official capacity as Assistant
)
Superintendent Operations, and KERI
)
JOHNSON, individually and in her official
)
capacity as Classification Analyst
)
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Defendants.
)

Case No. 1:14-cv-0671-TWP-DKL

ENTRY ON MOTION TO DISMISS
This matter is before the Court on Defendants Captain Jerry Gilley’s and Superintendent
Dushan Zatecky’s (hereinafter, the “Moving Defendants”) Motion to Dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. (Filing No. 12). Plaintiff Robert Holleman (“Mr.
Holleman”), an Indiana prisoner confined at the Pendleton Correctional Facility, filed this action
pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Mr. Holleman has filed a
response to the Motion to Dismiss and the Moving Defendants have filed a reply. For the reasons
set forth below, the Motion is GRANTED.

I. LEGAL STANDARD
The Moving Defendants challenge the sufficiency of the Complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. To survive such a motion, the plaintiff must
allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility 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, 677-78 (2009). “[D]ismissal may
be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged
under a cognizable legal theory.” Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th
Cir. 2008) (internal quotations and citations omitted); see also Neitzke v. Williams, 490 U.S. 319,
326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue
of law”). “A complaint is subject to dismissal for failure to state a claim if the allegations, taken
as true, show that plaintiff is not entitled to relief.” Jones v. Bock, 127 S. Ct. 910, 921 (2007).
Mr. Holleman is proceeding without counsel. Pro se complaints such as that filed by Mr.
Holleman are construed liberally and held to a less stringent standard than formal pleadings drafted
by lawyers. Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008). Liberal construction
means that if the court can reasonably read the pleadings to state a valid claim on which the party
could prevail, it should do so. Despite this liberal construction, the court will not invent legal
arguments for litigants, and is not obliged to accept as true legal conclusions or unsupported
conclusions of fact. County of McHenry v. Insurance Company of the West, 438 F.3d 813, 818
(7th Cir. 2006) (internal quotations and citations omitted).

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Mr. Holleman invokes 42 U.S.C. § 1983, “the ubiquitous tort remedy for deprivations of
rights secured by federal law (primarily the Fourteenth Amendment) by persons acting under color
of state law.” Jackson v. City of Joliet, 715 F.2d 1200, 1201 (7th Cir. 1983), cert. denied, 465 U.S.
1049 (1984). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the Constitution or laws of the United States and must show that the alleged
deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S.
42, 48 (1988).
II. FACTUAL BACKGROUND
Mr. Holleman is a convicted offender. He alleges that he, along with other inmates in his
unit, was punished as a group because contraband was found in a common area in his unit. His
specific allegations are that the Moving Defendants violated his constitutional rights when they
took away his evening dayroom, shower, telephone, and outside recreation privileges from 6:00
p.m. until 11:30 p.m. for three days without any disciplinary charges being brought against him
and without due process. Mr. Holleman claims this treatment violated his federally secured rights
and he challenges the Indiana Department of Correction’s policies regarding implementing
sanctions or punishment without any formal disciplinary charges brought against him.
III. DISCUSSION
“[T]he first step in any [§ 1983] claim is to identify the specific constitutional right
infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994). The complaint alludes to protections of
the Fifth, the Eighth, and the Fourteenth Amendments to the United States Constitution. However,
because there is no allegation or suggestion of action by a federal actor, there is no viable claim
under the Fifth Amendment. Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir. 1983) (“Plaintiffs
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have alleged no action by the federal government, as the Fifth Amendment requires.”). By contrast,
“[i]t is undisputed that the treatment a prisoner receives in prison and the conditions under which
he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509
U.S. 25, 31 (1993). The Constitution does not mandate comfortable prisons, but neither does it
permit inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Cruel and Unusual
Punishment Clause of the Eighth Amendment forbids conditions that involve the “wanton and
unnecessary infliction of pain,” or are “grossly disproportionate to the severity of the crime.”
Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The conditions Mr. Holleman describes, however,
do not even approach the level of an Eighth Amendment violation.
The Fourteenth Amendment’s guarantee of due process is the genuine battleground of the
parties’ briefs. For prisoners, liberty interests arise only from policies that impose “‘atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Wilkinson
v. Austin, 545 U.S. 209, 221–23 (2005) (quoting Sandin v. Conner, 515 U.S. 472, 4884 (1995));
see also Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013). The privileges Mr. Holleman
describes as having been briefly taken from him do not meet the standard established by Sandin.
This is true based on the brevity of the change itself, see, e.g., Holly v. Woolfolk, 415 F.3d 678,
679 (7th Cir. 2005); Townsend v. Fuchs, 522 F.3d 765, 766 (7th Cir. 2008); Hoskins v. Lenear,
395 F.3d 372, 374–75 (7th Cir. 2005), and is all the more true when consideration is given to the
nature of the “deprivations” about which Mr. Holleman complains. Such conditions do not satisfy
the due process threshold unless “materially more onerous than ‘the ordinary incidents of prison
life.’” Marion v. Radtke, 641 F.3d 874, 875 (7th Cir. 2011) (quoting Sandin, 515 U.S. at 484); see
also Lekas v. Briley, 405 F.3d 602, 612 (7th Cir. 2005).
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As a predicate for any Fourteenth Amendment procedural due process claim, the inmate
must have been deprived of a protected liberty or property interest. See Thompson v. Veach, 501
F.3d 832, 835 (7th Cir. 2007). Mr. Holleman’s Fourteenth Amendment claims fail to meet this
requirement. Mr. Holleman argues that he was punished in violation of Indiana law, but such a
claim may not use § 1983 to challenge a violation of state law or prison rules because § 1983
protects plaintiffs only from constitutional violations. See Scott v. Edinburg, 346 F.3d 752, 760
(7th Cir. 2003); Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 485 n.1 (7th Cir. 2011).
Mr. Holleman also argues that he was punished without being given due process, but when no
recognized liberty or property interest has been taken, the confining authority “is free to use any
procedures it choses, or no procedures at all.” Montgomery v. Anderson, 262 F.3d 641, 644 (7th
Cir. 2001). Therefore this claim also fails.
IV. CONCLUSION
Mr. Holleman’s Complaint fails to state a plausible claim for relief against the Moving
Defendants. The Motion to Dismiss (Filing No. 12) filed by Jerry Gilley and Dushan Zatecky is
therefore GRANTED.

The Moving Defendants were the only defendants in the original

Complaint. That Complaint (Filing No. 1) is therefore DISMISSED and these two defendants may
be terminated on the docket. However, because of the supplemental complaint (Filing No. 20),
this ruling does not resolve all claims against all parties and no partial final judgment shall issue
as to the dismissal of the original Complaint.
SO ORDERED.
3/26/2015
Date: __________________

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DISTRIBUTION:
Robert L. Holleman, #10067
Pendleton Correctional Facility
4490 West Reformatory Road
Pendleton, Indiana 46064
Jefferson S. Garn
OFFICE OF THE INDIANA ATTORNEY GENERAL
[e-mail]

Lakesha Triggs
OFFICE OF THE INDIANA ATTORNEY GENERAL
[e-mail]

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