GRAU v. KALLIS et al
ORDER Granting Motion to Proceed In Forma Pauperis, Dismissing Complaint and Directing Filing of Amended Complaint - Mr. Grau's motion to proceed in forma pauperis, dkt. 2 , is GRANTED. He shall have through October 12, 2022, to pay an initial partial filing fee of Seven Dollars and Fifty Cents ($7.50). In addition, Mr. Grau's complaint has been screened as required by 28 U.S.C. § 1915A and is DISMISSED. The clerk is directed to include a copy of the prisoner civil rights co mplaint form along with the plaintiff's copy of this Order. He will have through October 12, 2022, to file an amended complaint. Failure to take either of these steps may result in the dismissal of this action without further notice. (SEE ORDER.) Copy sent to plaintiff via US mail. Signed by Judge James Patrick Hanlon on 9/16/2022. (Attachments: # 1 Blank Complaint Form) (TPS)
Case 2:22-cv-00382-JPH-MG Document 5 Filed 09/16/22 Page 1 of 6 PageID #: 18
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DALE A. GRAU,
STEVE KALLIS, et al.,
Order Granting Motion to Proceed In Forma Pauperis,
Dismissing Complaint and Directing Filing of Amended Complaint
Plaintiff Dale Grau is a prisoner currently incarcerated at the United States Penitentiary in
Terre Haute, Indiana (USP Terre Haute). He filed this civil action alleging that he was improperly
placed in segregation. In this Order, Mr. Grau's motion for leave to proceed in forma pauperis is
granted and, because he is a "prisoner," this Court screens the complaint before service on the
defendants. 28 U.S.C. § 1915A(a), (c).
I. Motion to Proceed In Forma Pauperis
The plaintiff's motion to proceed in forma pauperis, dkt. , is granted to the extent that
the plaintiff is assessed an initial partial filing fee of Seven Dollars and Fifty Cents ($7.50). See
28 U.S.C. § 1915(b)(1). The plaintiff shall have through October 12, 2022, in which to pay this
sum to the clerk of the district court.
The plaintiff is informed that after the initial partial filing fee is paid, he will be obligated
to make monthly payments of 20 percent of the preceding month's income each month that the
amount in his account exceeds $10.00, until the full filing fee of $350.00 is paid. 28 U.S.C.
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§ 1915(b)(2). After the initial partial filing fee is received, a collection order will be issued to the
plaintiff and the plaintiff's custodian.
When screening a complaint, the Court must dismiss any portion that is frivolous or
malicious, fails to state a claim for relief, or seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. § 1915A(b). To determine whether the complaint states a
claim, the Court applies the same standard as when addressing a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6). See Schillinger v. Kiley, 954 F.3d 990, 993 (7th Cir. 2020).
Under that standard, a complaint must include "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,
678 (2009). The Court construes pro se complaints liberally and holds them to a "less stringent
standard than formal pleadings drafted by lawyers." Cesal v. Moats, 851 F.3d 714, 720 (7th Cir.
B. The Complaint
Mr. Grau sues Warden Steve Kallis and Dr. Linda Davis. He alleges that, on April 7, 2022,
he was removed from the Challenge Unit Program based on false accusations by other inmates and
Dr. Davis. He was then placed in segregation on May 4, 2022. He has asked Warden Kallis to
correct this, but the Warden has not done so. He states that Dr. Davis and Warden Kallis's actions
have "placed an undue label" on him and prevented him from completing the Challenge Unit
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Program and a psych class. He also alleges that these actions have caused other staff to retaliate
against him. He has been in segregation for four months and will be transferred out.
Based on the screening standard set forth above, Mr. Grau's complaint must be dismissed.
As to his due process claim, Mr. Grau has not plausibly alleged a deprivation of any protected
liberty interest. The Due Process Clause applies only to deprivations of life, liberty, and property.
Isby v. Brown, 856 F.3d 508, 524 (7th Cir. 2017). A protected liberty interest "is triggered only
when the confinement imposes 'atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.'" Lisle v. Welborn, 933 F.3d 705, 721 (7th Cir. 2019) (quoting
Sandin v. Conner, 515 U.S. 472, 484 (1995)). "[B]oth the duration and the conditions of the
segregation must be considered" in determining whether due process is implicated. Here, Mr.
Grau's allegations that he has been held in segregation for four months with no description of the
conditions in segregation are insufficient to show an atypical or significant hardship. Lisle, 933
F.3d at 721 (four months in segregation for discovery of contraband was not atypical or
significantly harsh). The same is true of his allegations that he was denied participation in the
Challenge Unit Program and psych classes. See, e.g., Higgason v. Farley, 83 F.3d 807, 809-810
(7th Cir. 1996) (the denial of access to educational programs does not infringe on a protected
liberty interest, even if denied the opportunity to earn good time credits); Garza v. Miller, 688 F.2d
480, 485-86 (7th Cir. 1982) (there is no constitutional mandate that prisons must provide
rehabilitative programs). Because Mr. Grau has failed to allege his confinement imposed an
atypical or significant hardship, he has failed to allege a deprivation of any protected liberty
interest, and so his due process claims must be dismissed.
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As to Mr. Grau's retaliation claim, he has failed to plausibly allege facts supporting each
element of his claim. To state a First Amendment retaliation claim, Mr. Grau must allege he
engaged in protected activity, an adverse action was taken against him, and his protected conduct
was at least a motivating factor of the adverse action. Holleman v. Zatecky, 951 F.3d 873, 878 (7th
Cir. 2020). He only alleges the defendants' actions have caused other staff to retaliate against him;
he does not allege any specific facts regarding his protected conduct, the alleged acts of retaliation,
who took those acts, or the relationship between the defendants and the other staff who retaliated
against him. These allegations therefore are too vague to support a retaliation claim. See Twombly,
550 U.S. at 570.
D. Opportunity to File an Amended Complaint
The dismissal of the complaint will not in this instance lead to the dismissal of the action
at present. "The usual standard in civil cases is to allow defective pleadings to be corrected,
especially in early stages, at least where amendment would not be futile." Abu-Shawish v. United
States, 898 F.3d 726, 738 (7th Cir. 2018). In the interest of justice, the court will allow plaintiff to
amend his complaint if, after reviewing this court's order, he believes that he can state a viable
claim for relief, consistent with the allegations he has already made. See Tate v. SCR Med. Transp.,
809 F.3d 343, 346 (7th Cir. 2015) ("We've often said that before dismissing a case under 28 U.S.C.
§ 1915(e)(2)(B)(ii) a judge should give the litigant, especially a pro se litigant, an opportunity to
amend his complaint."); Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013).
The amended complaint must (a) contain a short and plain statement of the claim showing
that the plaintiff is entitled to relief, which is sufficient to provide the defendant with fair notice of
the claim and its basis; (b) include a demand for the relief sought; and (c) identify what injury he
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claims to have suffered and what persons are responsible for each such injury. In organizing his
complaint, the plaintiff may benefit from utilizing the Court's complaint form.
Any amended complaint should have the proper case number, 2:22-cv-382-JPH-MG and
the words "Amended Complaint" on the first page. The amended complaint will completely
replace the original. See Beal v. Beller, 847 F.3d 897, 901 (7th Cir. 2017) ("For pleading purposes,
once an amended complaint is filed, the original complaint drops out of the picture."). Therefore,
it must set out every defendant, claim, and factual allegation the plaintiff wishes to pursue in this
If the plaintiff files an amended complaint, it will be screened pursuant to 28 U.S.C.
§ 1915A(b). If no amended complaint is filed, this action will be dismissed without further notice
or opportunity to show cause.
As discussed above, Mr. Grau's motion to proceed in forma pauperis, dkt. , is
GRANTED. He shall have through October 12, 2022, to pay an initial partial filing fee of Seven
Dollars and Fifty Cents ($7.50). In addition, Mr. Grau's complaint has been screened as required
by 28 U.S.C. § 1915A and is DISMISSED. The clerk is directed to include a copy of the prisoner
civil rights complaint form along with the plaintiff's copy of this Order. He will have through
October 12, 2022, to file an amended complaint. Failure to take either of these steps may result in
the dismissal of this action without further notice.
Case 2:22-cv-00382-JPH-MG Document 5 Filed 09/16/22 Page 6 of 6 PageID #: 23
DALE A. GRAU
TERRE HAUTE - USP
TERRE HAUTE U.S. PENITENTIARY
P.O. BOX 33
TERRE HAUTE, IN 47808
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