“Section 1983 suits in Illinois have a two-year statute of limitations, which is tolled while the prisoner exhausts the administrative grievance process.”
How later courts described this case
- “Section 1983 suits in Illinois have a two-year statute of limitations, which is tolled while the prisoner exhausts the administrative grievance process.”
- “Ruling against a prisoner on an administrative complaint does not cause or contribute to the violation.”
- failure to follow state law does not violate Constitution
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
EUGENE BOWMAN, )
)
Plaintiff, )
)
19-1082
v. )
)
GREGORY KOCHEL, et al.
)
)
Defendants.
)
MERIT REVIEW AND CASE MANAGEMENT ORDER
Plaintiff, proceeding pro se, and currently incarcerated at
Waupun Correctional Institution in Waupun, Wisconsin, was
granted leave to proceed in forma pauperis. The case is now before
the court for a merit review of plaintiff’s claims. The court is
required by 28 U.S.C. § 1915A to “screen” the plaintiff’s amended
complaint, and through such process to identify and dismiss any
legally insufficient claim, or the entire action if warranted. A claim
is legally insufficient if it “(1) is frivolous, malicious, or fails to state
a claim upon which relief may be granted; or (2) seeks monetary
relief from a defendant who is immune from such relief.” 28 U.S.C.
§ 1915A.
In reviewing the complaint, the court accepts the factual
allegations as true, liberally construing them in the plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). However,
conclusory statements and labels are insufficient. Enough facts
must be provided to “state a claim for relief that is plausible on its
face.” Alexander v. U.S., 721 F.3d 418, 422 (7th Cir. 2013)(citation
omitted).
Plaintiff alleges that he was found guilty of being a member in
a security threat group (street gang) in 2015, but that he later
successfully appealed the decision. Thereafter, Plaintiff alleges that
prison officials continued to investigate him, issued incident
reports, and found him guilty of a similar offense in 2016 in
retaliation for his successful use of the grievance process in the first
case. Plaintiff alleges that prison officials failed to follow state rules
and regulations, refused to call witnesses at his hearings, adopted
the investigation reports word-for-word, and that the wardens and
grievance officials either signed off on the guilty findings or refused
to grant the relief he sought in his grievances.
Plaintiff alleges that he attempted to file a lawsuit related to
these matters in May 2017 by forwarding the complaint to the
Pontiac law library along with a request to file the document
electronically with the clerk of court. Plaintiff alleges that he was
transferred to Menard Correctional Center four days later and never
learned if his lawsuit had been filed despite attempts to write
officials at Pontiac.
Plaintiff states a First Amendment retaliation claim based
upon his allegations that Defendants Pierce II, Davis, Salinas,
Buford, Brown, and Farr continued to investigate him, issued
disciplinary reports, and found him guilty in 2016. Plaintiff’s
complaint provides some indication that Plaintiff lost good-time
credit as a result of the 2016 proceedings, and, if so, the favorable
termination rule in Heck v. Humphrey, 512 U.S. 477 (1994), may
apply. In addition, Plaintiff’s claims may be time-barred depending
on when he completed the exhaustion process. Turley v. Rednour,
729 F.3d 645, 651 (7th Cir. 2014) (“Section 1983 suits in Illinois
have a two-year statute of limitations, which is tolled while the
prisoner exhausts the administrative grievance process.”).
Resolution of both issues, however, should await a more developed
record.
Plaintiff’s allegations related to events that occurred in 2015
are time-barred. Plaintiff completed the grievance process for these
incidents on May 10, 2016, see (Doc. 1 at 9, ¶ 32), but did not file
this lawsuit until more than two years later. Assuming Plaintiff was
entitled to the minimum protections due process requires, Plaintiff
also does not state a claim based upon the alleged refusal to call his
witnesses at the disciplinary hearings. As alleged by Plaintiff, the
witnesses’ expected testimony would have been duplicative of
Plaintiff’s own statements. In that circumstance, prison officials
were not required to call Plaintiff’s witnesses. Piggie v. Cotton, 344
F.3d 674, 677 (7th Cir. 2003). Further, due process requires only
“some evidence” to support a guilty finding at a disciplinary
hearing, which was outlined in the reports Plaintiff provided. (Doc.
1-1 at 3-4); Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007).
Finally, Plaintiff cannot state a federal claim based on the
violation of state law or regulations, and the denial of an
administrative complaint is not sufficient to impose liability under §
1983. See Lennon v. City of Carmel, 865 F.3d 503, 509 (7th Cir.
2017) (failure to follow state law does not violate Constitution);
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Ruling against
a prisoner on an administrative complaint does not cause or
contribute to the violation.”). Plaintiff also does not allege how the
named defendants would have been responsible for copying
documents he sent to the law library. For these reasons, the
remaining claims Plaintiff alleges will be dismissed.
It is therefore ordered:
1. Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the court finds that the plaintiff states a First
Amendment retaliation claim against Defendants Pierce Jr., Davis,
Salinas, Buford, Brown, and Farr. Any additional claims shall not
be included in the case, except at the court’s discretion on motion
by a party for good cause shown or pursuant to Federal Rule of
Civil Procedure 15.
2. This case is now in the process of service. The plaintiff is
advised to wait until counsel has appeared for the defendants
before filing any motions, in order to give the defendants notice and
an opportunity to respond to those motions. Motions filed before
defendants' counsel has filed an appearance will generally be denied
as premature. The plaintiff need not submit any evidence to the
court at this time, unless otherwise directed by the court.
3. The court will attempt service on the defendants by
mailing each defendant a waiver of service. The defendants have 60
days from the date the waiver is sent to file an answer. If the
defendants have not filed answers or appeared through counsel
within 90 days of the entry of this order, the plaintiff may file a
motion requesting the status of service. After the defendants have
been served, the court will enter an order setting discovery and
dispositive motion deadlines.
4. With respect to a defendant who no longer works at the
address provided by the plaintiff, the entity for whom that
defendant worked while at that address shall provide to the clerk
said defendant's current work address, or, if not known, said
defendant's forwarding address. This information shall be used only
for effectuating service. Documentation of forwarding addresses
shall be retained only by the clerk and shall not be maintained in
the public docket nor disclosed by the clerk.
5. The defendants shall file an answer within 60 days of the
date the waiver is sent by the clerk. A motion to dismiss is not an
answer. The answer should include all defenses appropriate under
the Federal Rules. The answer and subsequent pleadings shall be
to the issues and claims stated in this opinion. In general, an
answer sets forth the defendants' positions. The court does not rule
on the merits of those positions unless and until a motion is filed by
the defendants. Therefore, no response to the answer is necessary
or will be considered.
6. This district uses electronic filing, which means that,
after defense counsel has filed an appearance, defense counsel will
automatically receive electronic notice of any motion or other paper
filed by the plaintiff with the clerk. The plaintiff does not need to
mail to defense counsel copies of motions and other papers that the
plaintiff has filed with the clerk. However, this does not apply to
discovery requests and responses. Discovery requests and
responses are not filed with the clerk. The plaintiff must mail his
discovery requests and responses directly to defendants' counsel.
Discovery requests or responses sent to the clerk will be returned
unfiled, unless they are attached to and the subject of a motion to
compel. Discovery does not begin until defense counsel has filed an
appearance and the court has entered a scheduling order, which
will explain the discovery process in more detail.
7. Counsel for the defendants is hereby granted leave to
depose the plaintiff at his place of confinement. Counsel for the
defendants shall arrange the time for the deposition.
8. The plaintiff shall immediately notify the court, in
writing, of any change in his mailing address and telephone
number. The plaintiff's failure to notify the court of a change in
mailing address or phone number will result in dismissal of this
lawsuit, with prejudice.
9. If a defendant fails to sign and return a waiver of service
to the clerk within 30 days after the waiver is sent, the court will
take appropriate steps to effect formal service through the U.S.
Marshals service on that defendant and will require that defendant
to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).
10. The clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability and
Accountability Act.
11. The clerk is directed to terminate Gregory Kochel, Randy
Pfister, J James, Guy D. Pierce, S Simpson, Michael P. Melvin,
Melissa Phoenix, John R. Baldwin, and John Doe as defendants.
12. The clerk is directed to attempt service on Defendants
Pierce Jr., Davis, Salinas, Bufford, Brown, and Farr pursuant to the
standard procedures.
13. Plaintiff’s motion for counsel [5] is denied, with leave to
renew upon demonstrating that he made attempts to hire his own
counsel. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). This
typically requires writing to several lawyers and attaching the
responses. If Plaintiff renews his motion, he should set forth how
far he has gone in school, any jobs he has held inside and outside
of prison, any classes he has taken in prison, and any prior
litigation experience he has.
Entered this 27th day of June, 2019.
/s/Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE