McKinley v. Atchinson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

BENARD MCKINLEY,

Plaintiff,

v. Case No. 3:16-CV-661-NJR-MAB

MICHAEL ATCHISON, KIMBERLY

BUTLER, RICHARD HARRINGTON,

BETSY SPILLER, JOSHUA

SCHOENBECK, JARED PHILLIPS,

REBECCA CREASON, C. WATSON,

MICHAEL HOF, WARDEN OF

MENARD CORRECTIONAL CENTER,

KEVIN REICHERT, FRANK

LAWRENCE, ALEX JONES, BRYAN

KUDER, JEANETTE COWAN, and

SHELLY FRANKLIN,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Pending before the Court is the Report and Recommendation by Magistrate Judge

Mark A. Beatty (Doc. 208), which recommends that the undersigned District Judge deny

the Motion for Summary Judgment filed by all Defendants (Doc. 189). Defendants timely

objected to the Report and Recommendation (Doc. 214). For the reasons set forth below,

the Court adopts in part and rejects in part the Report and Recommendation and grants

in part and denies in part Defendants’ Motion for Summary Judgment.

BACKGROUND

The following facts are not genuinely disputed for purposes of summary

judgment:

On September 11, 2013, Plaintiff Benard McKinley filed suit in this District Court

against Defendants Rick Harrington, Michael Atchinson, and Aimee Lang. See McKinley

v. Harrington, 13-cv-937-MJR (“2013 McKinley”). Defendant Atchison was Warden of

Menard Correctional Center from December 2011 to January 2013 (Doc. 190-1). Defendant

Harrington was Warden of Menard Correctional Center from January 2013 until April

2014 (Doc. 190-2). Aimee Lang was a medical tech (2013 McKinley, Doc. 7).

McKinley alleged that on October 25, 2012, he was placed in Administrative

Detention (AD)1 under a new program implemented by then-Warden Atchison and

continued by present-Warden Harrington (Doc. 190-2). The detention program, while

characterized as non-disciplinary, subjected McKinley to the same restrictions on the

possession of property as inmates in disciplinary segregation without any hearing or

measure of due process (Id.). Specifically, McKinley claimed he did not receive certain

property items until a few days after he was placed in AD (2013 McKinley, Doc. 1).

Furthermore, he was forced to wait 60 days to submit a request to get his audio-visual

privileges restored (Id.). The remainder of his property was not given him until January

29, 2013. (Id.). McKinley claimed this deprivation of his property without a hearing was

a violation of his due process rights (Id.). McKinley further alleged a claim of deliberate

indifference as to his asthma while he was in AD.

1 The Court’s threshold order in that case often referred to McKinley as having been placed in

“administrative segregation” See 2013 McKinley, Doc. 7 at p. 4. Throughout the pleadings and even the

Seventh Circuit’s order in 2014 McKinley, the terms “administrative detention” and “administrative

segregation” are used interchangeably. The Court notes, however, that McKinley alleged he was placed on

“Administrative Detention Confinement Status,” not administrative segregation. See 2013 McKinley, Doc.

1.

Upon threshold review in 2013 McKinley, the Court found that the Complaint

alleged two counts (2013 McKinley, Doc. 7):

Count 1: Defendants Atchison and Harrington denied McKinley

procedural due process in violation of the Fifth and

Fourteenth Amendments when they subjected to him to

administrative detention and its attendant “property”

restrictions without any hearing; and

Count 2: Defendants Amy Lang and Michael P. Atchison were

deliberately indifferent to his serious medical needs in

violation of the Eight Amendment when they took no steps to

secure an inhaler refill or otherwise have McKinley’s asthma

treated.

In reviewing Count 1, the 2013 McKinley Court noted that an inmate’s “mere

placement or retention” in AD does not deprive him of a protected liberty or property

interest. Furthermore, McKinley did not allege that his term in AD extended his sentence

in any way or implicated any liberty interest such that any due process rights were

triggered (Id.). Accordingly, the 2013 McKinley court dismissed Count 1 and Defendants

Harrington and Atchison with prejudice (Id.). The deliberate indifference claim with

regard to his asthma survived preliminary review.

On May 1, 2014, McKinley moved to amend his Complaint in 2013 McKinley, and

on October 6, 2014, he filed a motion for leave to supplement his Complaint. The

proposed Amended Complaint (and supplement) alleged, in relevant part, that in April

2014, he was placed in Menard’s AD step-down program, but subsequently was removed

and placed back on AD status. He also alleged that, during his time in AD, he was in a

cell with no heat, hot water, or sanitary supplies; the window in his cell was broken; and

there was dirt and rodent feces on the floor. He claimed he told Joshua Schoenbeck and

Lance Phelps about the conditions but they refused to do anything.

McKinley’s motions to amend and supplement the complaint were granted

(Doc. 46). The Amended Complaint added new counts against Defendants Phelps and

Schoenbeck for retaliating against him by placing him in administrative segregation for

refusing to answer questions and for his religious beliefs, for subjecting him to excessive

force in retaliation for filing 2013 McKinley, for thwarting his plans to marry in retaliation

for filing 2013 McKinley, and for subjecting him to inhumane living conditions in AD in

violation of the Eighth Amendment. Although the Motion to Amend was granted, the

Court severed the claims against Defendants Phelps and Schoenbeck into a separate suit.

See McKinley v. Schoenbeck, 14-cv-1137-NJR-DGW (“2014 McKinley”).

McKinley filed a Second Amended Complaint in 2014 McKinley on July 6, 2015

(2014 McKinley at Doc. 43). The Second Amended Complaint added Chad Hasemeyer

and Jacqueline Lashbrook as defendants in that matter, alleging these parties also

retaliated against McKinley by placing him in segregation due to his inability to assist in

an internal affairs investigation and for his religious beliefs. The Court granted summary

judgment to all Defendants, a decision that McKinley appealed. In its opinion, the

Seventh Circuit noted that “[a]fter McKinley was released from administrative detention

in November 2015, he filed this civil-rights lawsuit.”2 The opinion also references

McKinley’s “over three years” in administrative detention on four instances. Ultimately,

the Seventh Circuit reversed the Court’s grant of summary judgment to Lashbrook,

2 The Court notes, but does not comment on, the discrepancy between the Seventh Circuit’s statement that

McKinley filed his lawsuit in November 2015 and the fact that his Second Amended Complaint was filed

in July 2015 (2014 McKinley, Doc. 43).

Phelps, and Schoenbeck. 2014 McKinley is still pending.

McKinley filed this action on June 17, 2016 (Doc. 1) and amended his complaint on

August 16, 2016 (Doc. 19).3 In his First Amended Complaint, McKinley alleged that he

was placed in AD in 2012 in retaliation for refusing to answer questions by internal affairs

officers. He further claimed he had no hearing to address his continued placement in AD

until July 2014. Prison officials met ten times between October 2012 and October 2015 to

review his situation, but found that his continued confinement in AD was appropriate.

At four hearings between July 2014 and October 2015, members of Menard’s

Administrative Detention Review Committee (“ADRC”), affirmed these decisions.

McKinley, however, described these hearings a “sham.” Finally, he claimed that the

conditions of his cell were deplorable, as they were infested with mice, cockroaches, and

other bugs, the window was cracked, the heat was broken, and he had no hot water for

months at a time. He also was denied cleaning supplies.

After threshold review of his First Amended Complaint pursuant to 28 U.S.C.

§ 1915A (Doc. 20), McKinley was allowed to proceed on the following claims:

Count 1: Fourteenth Amendment claim against Defendants for

depriving McKinley of a protected liberty interest without

due process of law in connection with his placement in

administrative detention at Menard for 1,096 days from 2012-

2015.

Count 2: First Amendment retaliation claim against Defendants for

holding McKinley in administrative detention at Menard for

1,096 days from 2012-2015 because he filed grievances and

lawsuits against them.

3 McKinley later filed a Second Amended Complaint that identified several unknown defendants but did

not add any new claims or parties (Doc. 112).

Count 3: Eighth Amendment claim against Defendants for subjecting

McKinley to unconstitutional conditions of confinement in

administrative detention at Menard for 1,096 days from 2012-

2015.

At that time, the Court noted that McKinley “may be foreclosed from pursuing

portions of his claims against Warden Atchinson, Warden Harrington, and Joshua

Schoenbeck” when he previously filed a due process claim against Atchison and

Harrington that was dismissed with prejudice against both defendants, and when he was

currently pursuing similar claims against Schoenbeck in another case (Doc. 20 at p. 7); see

McKinley v. Harrington, No. 3:13-cv-00937-SCW (S.D. Ill. Sep. 11, 2013). Because the Court

could not assess the extent to which the claims were duplicative, however, McKinley was

permitted to proceed against all named defendants at that time (Id.).

MOTION FOR SUMMARY JUDGMENT

On October 29, 2018, Defendants filed a motion for summary judgment arguing

that McKinley’s claims are barred by res judicata, they are entitled to judgment as a matter

of law on his due process claims, McKinley’s claims are barred in part by the statute of

limitations, and they are shielded from liability by the doctrine of qualified immunity

(Doc. 189).

Specifically with regard to res judicata, Defendants argued there is (1) a final

judgment of the merits in 2013 McKinley in favor of Defendants Harrington and

Atchison; (2) there is an identity of the cause of action as McKinley’s claim in the case at

bar and his claims in 2013 McKinley arise from his confinement in administrative

detention; and (3) Defendants Harrington and Atchison are defendants in both suits.

Furthermore, because res judicata acts as a bar to a subsequent suit in every matter that

might or could have been raised in the original action, McKinley’s claims against the

remaining Defendants that could have been brought in the original action are also barred.

With regard to the statute of limitations, Defendants argued that Section 1983 cases

arising in Illinois are governed by a two-year statute of limitations. In this case, that

means McKinley’s allegations that occurred prior to June 17, 2014, are barred by the

statute of limitations. Defendants further argue that the continuing violation doctrine

does not apply because he has already filed suit twice before. To allow McKinley to reach

back until 2012 would be permitting duplicate litigation. Furthermore, they argued,

McKinley’s claims against Defendants Atchison, Harrington, Jones, Reichert, and

Lawrence must be barred by the statute of limitations as their roles ceased more than two

years prior to McKinley filing this lawsuit.

Defendants next argued that they were entitled to summary judgment on the

merits of McKinley’s due process claim. Specifically, the Supreme Court has held that

due process requires periodic reviews of an inmate’s placement in administrative

segregation, which the Seventh Circuit has held can be informal and non-adversarial.

Here, Defendants argued, McKinley’s placement was reviewed every 90 days, which was

all the process due under the law.

Finally, Defendants argued they are entitled to qualified immunity.

McKinley filed a timely response in opposition (Doc. 192). With regard to his due

process claim, he asserted that 2013 McKinley strictly involved a property interest claim,

not his placement in AD. Specifically, he claimed that the behavioral program instituted

by Harrington and Atchison deprived him of his personal property without following

the proper pre-deprivation procedures, thereby violating his due process rights. He

further argued that his claims were not subject to the statute of limitations as he suffered

a “continuing wrong” while in AD. Next, he argued Defendants are not entitled to

summary judgment on the merits of his due process claim because he was continually

placed in AD from October 25, 2012 to June 25, 2014, without any informal or formal

notice of the reasons why he was placed there. Finally, he argued Defendants are not

entitled to qualified immunity.

In his statement of undisputed material facts, McKinley admitted that the facts of

2014 McKinley “overlap[] with the facts in this case (McKinley v. Atchison, et al.) in its

entirety.”

THE REPORT AND RECOMMENDATION AND OBJECTIONS

In his Report and Recommendation (Doc. 208), Judge Beatty acknowledged 2013

McKinley and 2014 McKinley but found that the doctrine of res judicata did not apply.

Judge Beatty noted that while 2013 McKinley revolved around his initial placement in

AD, the present case relates to his “continued confinement” in AD. He further stated:

“When Plaintiff filed suit in 2013 McKinley, he had been confined in the ADU for less

than a year, so it is unlikely the issue of continued placement could have been resolved

in that action.” (Id. at p. 10). As such, he concluded, “the two suits do not arise from a

single group of operative facts . . . .“

Judge Beatty also found that Defendants were not entitled to summary judgment

on the merits of McKinley’s due process claim. First, he found that McKinley’s

confinement in AD for more than three years in a dirty cell that lacked adequate heat and

hot water implicated a protected liberty interest. Because his liberty was at stake, Judge

Beatty next examined what process was due to McKinley. He found that McKinley

received no process when he was initially placed in AD and was not told why he was in

AD for 18 months. Furthermore, McKinley presented evidence from which a jury could

conclude that the reviews were not constitutionally meaningful, as the forms used by

Defendants provide only uninformative, boilerplate reasons for continuing his

placement. Accordingly, he found there is a genuine issue as to whether the periodic

reviews prior to July 2014 were anything more than “hollow formalities.”

Judge Beatty further found McKinley’s claims are not barred by the statute of

limitations. He acknowledged that plaintiffs in Illinois have two years from the date that

their cause of action accrues, i.e., when they know or should have known their

constitutional rights have been allegedly violated, to file a lawsuit. Here, however,

McKinley’s 2013 suit was about his initial placement in AD. Thus, he would not have

known at that time that he had a cause of action related to his continued placement in

AD. He further found that Defendants Atchison, Harrington, Jones, Reichert, and

Lawrence were not entitled to summary judgment, despite their roles ceasing more than

two years before McKinley filed suit, because there are genuine issues of material fact as

to whether their roles actually ceased at that time and as to whether the statute of

limitations was tolled.

Finally, Judge Beatty found that Defendants are not entitled to qualified immunity.

Defendants objected to the Report and Recommendation (Doc. 214), arguing that

McKinley has essentially filed and litigated multiple cases arising from the same set of

facts. Defendants assert that there is an identity of the causes of action because McKinley

knew as early as September 11, 2013, that his assignment in Administrative Detention

was potentially indefinite and because res judicata bars claims that could have been

litigated but were not. Defendants also argued that there is no question of fact that

McKinley received all due process required under the law, and that the statute of

limitations must bar McKinley’s claims that accrued prior to June 17, 2014.

LEGAL STANDARDS

When timely objections are filed, the Court must undertake de novo review of the

Report and Recommendation. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b); SDIL-LR

73.1(b); Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill. 1993); see also Govas

v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). This requires the Court to look at all evidence

contained in the record, give fresh consideration to those issues to which specific

objections have made, and make a decision “based on an independent review of the

evidence and arguments without giving any presumptive weight to the magistrate

judge’s conclusion.” Harper, 824 F.Supp. at 788 (citing 12 CHARLES ALAN WRIGHT ET AL.,

FEDERAL PRACTICE AND PROCEDURE § 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part));

Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). The Court may then “accept,

reject, or modify, in whole or in part, the findings or recommendations made by the

magistrate judge.” 28 U.S.C. § 636(b)(1).

Summary judgment is proper only if the moving party can demonstrate “there is

no genuine issue as to any material fact and the movant is entitled to judgment as a matter

of law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving

party bears the burden of establishing that no material facts are in genuine dispute; any

doubt as to the existence of a genuine issue must be resolved against the moving party.

Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); see also Lawrence v. Kenosha Cty., 391

F.3d 837, 841 (7th Cir. 2004). A moving party is entitled to judgment as a matter of law

where the non-moving party “has failed to make a sufficient showing on an essential

element of her case with respect to which she has the burden of proof.” Celotex, 477 U.S.

at 323. “[A] complete failure of proof concerning an essential element of the nonmoving

party’s case necessarily renders all other facts immaterial.” Id.

DISCUSSION

I. Res Judicata

Res judicata blocks a second lawsuit if there is (1) an identity of the parties in the

two suits; (2) a final judgment on the merits in the first; and (3) an identity of the causes

of action. Barr v. Bd. of Trustees of W. Illinois Univ., 796 F.3d 837, 840 (7th Cir. 2015) . There

is identity of the causes of action where the two claims are based on the same, or nearly

the same, factual allegations. Id. “[A] plaintiff cannot evade preclusion by ‘identify[ing] a

slightly different cause of action with one element different from those in the first, second,

or third lawsuits between the same parties arising from the same events.’” Id. (quoting

Czarniecki v. City of Chicago, 633 F.3d 545, 549 (7th Cir. 2011)). It is the law of this Circuit

that, “even though one group of facts may give rise to different claims for relief upon

different theories of recovery, there remains a single cause of action.” Id. at 841. Res

judicata bars not only matters decided in the prior action, but also any issues that could

have been raised in the prior suit. Golden v. Barenborg, 53 F.3d 866, 869–70 (7th Cir. 1995).

Here, there is identity of parties in that McKinley sued Harrington and Atchison

in both 2013 McKinley and this case. And while there technically has not been a

“judgment on the merits,” a Section 1915(e)(2)(B) dismissal can have a res judicata effect

over future in forma pauperis suits. Keller v. Monroe Cty. Sheriff’s Dep’t, 473 F. App’x 510,

511 (7th Cir. 2012) (citing Denton v. Hernandez, 504 U.S. 25, 34 (1992)). In Keller, the Seventh

Circuit found that because the plaintiff’s second suit was also brought in forma pauperis,

it was precluded by the claims from his first suit that were based on the same facts. Id.

Here, the Court did not dismiss McKinley’s instant due process claim for frivolousness

on threshold review, but noted that the factual allegations overlapped with the claims in

2013 McKinley and 2014 McKinley (Doc. 20). The Court further stated that it was unable

to assess the extent to which the claims were duplicative without additional information,

but that it would address the matter in due course (Id.). That time is now.

The Court agrees with McKinley that both suits raise different claims. Count I of

2013 McKinley focused on the deprivation of McKinley’s property rights without due

process of law, while Count I of this lawsuit focuses on the deprivation of McKinley’s

liberty interest without due process of law. But both claims arise from the same factual

allegations: McKinley was in AD and was deprived of his property and liberty interests

without a hearing. McKinley cannot evade preclusion simply by raising a different theory

of recovery when the claims are based on the same facts. Barr, 796 F.3d at 840.

Judge Beatty further surmised that when McKinley filed suit in 2013, he had been

confined in AD for less than a year, so it was unlikely that the issue of continued

placement could have been resolved in that action. The Court disagrees. When McKinley

filed suit on September 11, 2013, he had already been in AD for nearly a year. Three of

the alleged “sham” reviews of his AD status had been completed by that date. McKinley

certainly could have included the issue of his continued placement in AD in his 2013

complaint. Because he could have raised that claim, but didn’t, he is precluded from

bringing it now as to Harrington and Atchison. They will be granted summary judgment

on McKinley’s due process claims.

The same cannot be said for the remaining Defendants, as they have not put forth

any evidence to demonstrate that there is an identity of the parties or their privies in the

two actions. Accordingly, summary judgment will not be granted to the remaining

Defendants on the grounds of res judicata.

II. Due Process

Defendants next object to Judge Beatty’s conclusion that there is a genuine issue

of material fact with regard to whether the periodic reviews McKinley received while in

AD constituted due process. They note that the Report and Recommendation focuses on

the process McKinley received upon his initial placement in AD (which Judge Beatty

previously found was not at issue in this suit), as well as his lack of meaningful review

until July 2014. Defendants assert that McKinley has not and cannot present any evidence

suggesting the periodic reviews performed related to his AD placement were a sham.

Instead, the evidence in the record demonstrates that the Administrative Detention Unit

Review Committee consisted of correctional employees with varied backgrounds and

areas of expertise who collectively evaluated his placement in the ADU.

The Due Process Clause of the Fourteenth Amendment applies to deprivations of

life, liberty, and property. Isby v. Brown, 856 F.3d 508, 524 (7th Cir. 2017). Courts engage

in a two-step process in procedural due process cases. Id. First, they determine whether

the plaintiff was deprived of a protected property or liberty interest. If so, they determine

what process was due under the circumstances. Id.

A sanction of AD or segregation can implicate a liberty interest if it “imposes

atypical and significant hardship on the inmate in relation to the ordinary incidents of

prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). With regard to segregation, the

Court should consider the length of segregation and the conditions endured. Hardaway v.

Meyerhoff, 734 F.3d 740, 744 (7th Cir. 2013); Marion v. Columbia Correction Inst., 559 F.3d

693, 697–98 (7th Cir. 2009) (“a liberty interest may arise if the length of segregated

confinement is substantial and the record reveals that the conditions of confinement are

unusually harsh”). If the conditions of segregation were significantly harsher than those

in the normal prison environment, then a year of segregation “might count as a

deprivation of liberty where a few days or even weeks might not.” Bryan v. Duckworth,

88 F.3d 431, 433 (7th Cir. 1996), abrogated on other grounds, Diaz v. Duckworth, 143 F.3d

345, 346 (7th Cir. 1998); see also Wagner v. Hanks, 128 F.3d 1173, 1174, 1177 (7th Cir. 1997)

(vacating a dismissal on the pleadings and remanding for additional fact-finding on

whether the conditions of segregation were significantly harsher than the normal prison

environment with respect to a one-year term of segregation).

Here, McKinley was in AD for more than three years, which warrants a review

into the conditions endured. McKinley alleges his AD cell was infested with mice,

cockroaches, and other bugs, the window was cracked, the heat was broken, and he had

no hot water for months at a time. He also was denied cleaning supplies. The Court finds

that these conditions, which McKinley allegedly endured for more than three years, are

harsher than the normal prison environment and invoke a protected liberty interest.

Finding a protected liberty interest at stake, the Court now turns to the process McKinley

was due.

In Hewitt v. Helms, 459 U.S. 460, 468 (1983), the Supreme Court held that “the Due

Process Clause mandates that prison officials periodically review whether an inmate

placed in administrative segregation continues to pose a threat.” Isby, 856 F.3d at 524

(citing Hewitt, 459 U.S. at 468 (abrogated in part on other grounds by Sandin, 515 U.S. 472)).

The Court further acknowledged that inmates “retain only a narrow range of protected

liberty interests,” and that “broad discretionary authority is necessary because the

administration of a prison is at best an extraordinarily difficult undertaking.” Hewitt, 459

U.S. at 467. The Court concluded that a prison’s internal security is best left to the

discretion of prison administrators and, although administrative segregation cannot be

used as a pretext for indefinite confinement, the periodic review of that confinement

required to meet due process “will not necessarily require that prison officials permit the

submission of any additional evidence or statements.” Isby, 856 F.3d at 252 (quoting

Hewitt, 459 U.S. at 477 n.9).

The record reflects that onJanuary 25, 2013, April 25, 2013, July 25, 2013, October

25, 2013, January 24, 2014, and April 25, 2014, an Administrative Detention Review was

performed (Doc. 190-5 at p. 7; Doc. 192-2 at pp. 10-14). On April 25, 2013, McKinley was

moved to Phase 3 of AD, a less restrictive phase with more privileges (Doc. 192-2 at pp. 1-

10).4 The forms also note that McKinley is part of the Spanish Cobras Security Threat

Group and that he has a low aggression level (Id.). The January 24, 2014 and April 25,

2014 forms state that STG activity had been noted during the program placement

(Doc. 192-2 at pp. 13-14). On each form the Committee recommended that McKinley

continue in the program (Id.). The reason given for the recommendation each time was to

continue the program for further observation (Id.).

On July 2, 2014, an Administrative Detention Placement Review occurred (Id. at

p. 15). McKinley was informed prior to the hearing that the reason for the detention

placement was because he was identified as having influence among the Latin Folks

Security Threat Group Family and was next in line to take a leadership role at Menard

(Id.). He also was identified as using his influence in pushing for staff assaults (Id.).

McKinley prepared an affidavit to submit at the review hearing (Id. at p. 17).

The form documenting the July 2, 2014 Administrative Detention Review indicates

that McKinley was placed in AD for the safety and security of the facility or person and

because of his behavior and disciplinary history (Id. at p. 18). The comments section again

noted his influence with the Latin Folks, his upcoming leadership role at Menard, and his

influence in pushing for staff assaults (Id.). The Committee recommended continuing AD

for continued observation “due to leadership and influence with the Latin Folks.” (Id.).

4 For example, Phase III offenders are allowed to go to yard twice weekly in three-hour increments with

up to ten offenders at a time. They may have a TV and radio. They are allowed commissary privileges

consistent with inmates in general population. They may shower twice per week, five inmates at a time.

And, they can have three, 2-hour visits per month. (Doc. 192-2 at pp. 1-9).

The next in-person review occurred September 23, 2014 (Id. at p. 20). McKinley

provided another written statement, but this time stated only that he had pending

litigation and believed it was not in his best interest to say anything (Id. at p. 21). The

Committee again recommended continuing Phase 3 of AD, noting his influence among

the Latin Folks, his leadership role, and push for staff assaults (Id. at p. 22).

McKinley had another in-person review scheduled for December 16, 2014, but he

refused to attend the hearing (Id. at p. 28). The Committee made the same

recommendation to continue AD for further observation (Id.). The same recommendation

was again made on March 13, 2015, June 12, 2015, and September 9, 2015, but there was

no justification for the recommendation provided (Id. at pp. 32, 36; Doc. 192-3 at p. 1).

Based on these facts, the Court finds that McKinley received all process he was

due. Under Hewitt, McKinley was entitled to “informal and nonadversary” periodic

review, and that is what he received. True, under Isby, prison officials cannot rely on “the

rote repetition of the same two boilerplate sentences following each review.” Isby, 856

F.3d at 528. In Isby, however, the prisoner plaintiff had been in segregation for more than

ten years, there were long stretches in which he had no serious disciplinary problems,

and there was conflicting evidence as to the reasons for his ongoing segregation. Id. The

reasoning provided for Isby’s continued placement in segregation was: “Your status has

been reviewed and there are no changes recommended to the Southern Regional Director

at this time. Your current Department-wide Administrative segregation status shall

remain in effect unless otherwise rescinded by the Southern Regional Director.” Id. at 515.

There also was differing testimony as to why Isby remained in segregation Id. at 515-16.

Here, McKinley was observed engaging in Security Threat Group activity twice

during his time in AD. And the comments on his review forms provide an actual reason

for why he was in AD: he was identified as having influence among the Latin Folks, he

was next in line for a leadership role, and he used his influence in pushing for staff

assaults. His September 9, 2015 form states that he was identified “within the last year . .

. as still utilizing leadership role.” (Doc. 192-3 at p. 1). See Isby, 856 F.3d at 527 (“Even one

or two edits or additions [to the review forms] along these lines could assuage our

concerns and provide helpful notice to Isby as to the reasons for his placement . . .”).

Clearly, prison officials found that McKinley continued to engage in gang activity and

use his influence as a leader while he was in AD, which was the basis for continuing his

placement. Because McKinley has presented no other evidence that the periodic reviews

were a sham or pretextual, the Court finds that McKinley’s due process claim fails.

III. Statute of Limitations

Finally, Defendants argue that all of McKinley’s claims that occurred prior to June

17, 2014, should be barred by Illinois’s two-year statute of limitations. Because the only

presently remaining claims are McKinley’s retaliation and conditions of confinement

claims, the Court analyzes the statute of limitations in the context of those claims.

Section 1983 suits in Illinois have a two-year statute of limitations. Turley v.

Rednour, 729 F.3d 645, 651 (7th Cir. 2013). “A cause of action accrues when the plaintiff

has a complete and present cause of action—in other words, when the plaintiff can file

suit and obtain relief.” Regains v. City of Chicago, 918 F.3d 529, 533 (7th Cir. 2019). “Put

another way, a personal injury claim raised under § 1983 accrues when the plaintiff

knows or has reason to know of the injury which is the basis of his action.”

Here, Defendants argue that as early as September 2013, McKinley was aware of

his claims related to continued administrative detention. They also argue that his

continued placement in AD does not constitute a “continuing violation” such that the

statute of limitations does not begin to run until the last violation.

The Court disagrees. The continuing violation doctrine applies to ongoing

constitutional violations, such as the continued refusal to provide medical care, Heard v.

Sheahan, 253 F.3d 316, 320 (7th Cir. 2001), or repeated unconstitutional lockdowns, Turley,

729 F.3d at 651. A claim related to a continuing violation accrues on the date of the last

violation, not the date of the first violation. Turley, 729 F.3d at 651. Thus, a plaintiff may

“‘reach back’ to the beginning of the wrong, ‘even if that beginning lies outside the

statutory limitations period.’” Watkins v. Ghosh, 2011 WL 5981006, at *3 (N.D. Ill. Nov. 28,

2011) (quoting Heard, 253 F.3d at 319).

Here, McKinley alleges that he was held in AD for 1,096 days in retaliation for

filing grievances and lawsuits against Defendants and that he was subjected to

unconstitutional conditions of confinement during that time, including a broken window,

no heat, no hot water, and a dirty cell with rodent feces and no access to cleaning supplies.

The Court finds that each day McKinley was allegedly kept in AD under these conditions

as retaliation for his First Amendment activity constitutes a continuous series of events.

McKinley was in AD for more than three years; it would be unreasonable to require him

to file suit every day after the initial two years in order to timely preserve his claim. See

Heard, 253 F.3d at 320. Because McKinley has alleged a continuing violation of his rights,

Defendants’ statute of limitations argument fails.

IV. Qualified Immunity

Because Defendants do not object to Judge Beatty’s conclusion that they are not

entitled to qualified immunity, the Court reviews that finding only for plain error.

Finding none, the Court adopts this portion of the Report and Recommendation.

CONCLUSION

For the reasons set forth above, the Court ADOPTS in part and REJECTS in part

the Report and Recommendation of Magistrate Judge Beatty (Doc. 208). The Motion for

Summary Judgment filed by all Defendants (Doc. 189) is GRANTED in part and

DENIED in part.

Summary judgment is GRANTED to all Defendants on McKinley’s due process

claim under the Fourteenth Amendment. Count I is DISMISSED with prejudice.

This case shall now proceed on Counts II and III against all Defendants.

Defendants are GRANTED leave to refile their Motion to Consolidate this case with 3:14-

cv-01137-NJR-MAB for pretrial matters and trial.

IT IS SO ORDERED.

DATED: September 30, 2019

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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