Hilliard v. Kink

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ANDRE HILLIARD, )

)

Plaintiff, )

)

vs. ) Case No. 19-cv-769-SMY

)

KEVIN W. KINK, )

BENJAMIN LEWIS, )

SHANAE MAYBERRY, )

MATTHEW TRIBBLE, )

L. LIVINGSTON, )

J. WHELAN )

and D. BROWN, )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Andre Hilliard, an inmate of the Illinois Department of Corrections (“IDOC”) who

is currently incarcerated at Stateville Correctional Center, brings this action pursuant to 42 U.S.C.

§ 1983 for alleged deprivations of his constitutional rights while incarcerated at Lawrence

Correctional Center (“Lawrence”). Plaintiff claims Defendants violated his due process rights

under the Fourteenth Amendment in connection with a disciplinary ticket that was later expunged.

This case is now before the Court for preliminary review of the Amended Complaint (Doc.

6) pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to screen prisoner

complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). Any portion of a

Complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be

granted, or asks for money damages from a defendant who by law is immune from such relief must

be dismissed. 28 U.S.C. § 1915A(b). At this juncture, the factual allegations are liberally

construed. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

The Complaint

Plaintiff makes the following allegations in the Amended Complaint (Doc. 6): Plaintiff

was given a disciplinary ticket for fighting on December 19, 2018. (Id., p. 8). In the disciplinary

ticket, C/O Tribble stated that he saw Plaintiff fighting with another inmate. (Id.). Plaintiff was

taken to segregation. (Id.).

D. Brown, the hearing investigator, failed to investigate the incident and did not interview

Plaintiff or call any of his witnesses. (Id., p. 4-5, 9). Whelan “could have prevented all this by

doing his job by talking to Internal Affairs” instead of placing Plaintiff in temporary confinement.

(Id., p. 9).

On December 30, 2018, Plaintiff went before the Adjustment Committee on the ticket.

(Id.). Plaintiff pled “not guilty” and gave a written statement denying that he threw a punch and

asking for a full investigation. (Id.). The Committee members, Lewis and Mayberry, found

Plaintiff guilty based at least in part on his “admission of guilt” and recommended 45 days in

segregation, loss of offender grade for 3 months, and revocation of 15 days of good conduct credit.

(Id., pp. 8, 14). This recommendation was adopted by Warden Kink, although it appears that one

of his subordinates (“DMB”) signed on his behalf.1 (Id., p. 15).

While in segregation, Plaintiff was placed on crisis or suicide watch multiple times. (Id.,

p. 8). “All of these incidents took a toll on the Plaintiff” mentally and physically “because Plaintiff

was placed in segregation falsely.” (Id.).

1 A later form filled out by Defendant Livingston suggests that this was Deanna Brookhart, the current

Acting Warden.

On January 22, 2019, Plaintiff submitted a grievance regarding the disciplinary ticket and

Adjustment Committee hearing. (Id., p. 18). Livingston, a Grievance Officer, reviewed the

Adjustment Committee’s report and acknowledged the inconsistency regarding Plaintiff’s plea,

but found no grounds to change the decision and recommended that the grievance be denied. (Id.,

p. 20). Plaintiff appealed this denial and the Administrative Review Board found in his favor,

ordering expungement of the disciplinary ticket. (Id., p. 8-9, 13).

Based on the allegations in the Amended Complaint, the Court finds it convenient to

organize the pro se action into the following Count:

Count 1: Fourteenth Amendment claim against Kink, Lewis, Mayberry,

Tribble, Livingston, Whelan and Brown for violating Plaintiff’s

procedural due process rights during the disciplinary hearing,

affirming the resulting decision of the Adjustment Committee

and denying his subsequent grievance.

The parties and the Court will use these designations in all future pleadings and orders, unless

otherwise directed by a judicial officer of this Court. Any other claim that is mentioned in the

Complaint but not addressed in this Order should be considered dismissed without prejudice

as inadequately pled under the Twombly pleading standard.2

Discussion

A plaintiff does not state a claim for procedural due process violations unless the state has

first deprived him or her of such a constitutionally protected interest, and an inmate's liberty

interest in avoiding segregation is limited. Hardaway v. Meyerhoff, 734 F.3d 740 (7th Cir. 2013).

Specifically, a protected liberty interest arises only if Plaintiff's confinement in segregation

“imposed an atypical and significant hardship on the inmate in relation to the ordinary incidents

2 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim upon which

relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face”).

of prison life.” Id. at 743 (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)). Courts consider

two factors when making this determination: “the combined import of the duration of the

segregative [sic] confinement and the conditions endured.” Id.

For relatively short periods of disciplinary segregation, inquiry into specific conditions of

confinement is unnecessary. Younger v. Hulick, 482 F. App'x 157, 159 (7th Cir. 2012) (citing

Lekas v. Briley, 405 F.3d 602, 612 (7th Cir. 2005); Thomas v. Ramos, 130 F.3d 754, 761 (7th Cir.

1997)). In that vein, longer periods in disciplinary segregation than the 45 days at issue here have

been found not to require specific inquiry into conditions. See Lekas (56 days) and Thomas (70

days). See Goings v. Jones, No. 16-CV-00833-NJR-DGW, 2018 WL 2099877, at *5 (S.D. Ill.

May 7, 2018); Martinez v. Bebout, No. 14-CV-453-JPG, 2014 WL 2109778, at *3 (S.D. Ill. May

20, 2014). The problem presented by Plaintiff’s short-term stay in segregation is compounded by

his failure to allege that the conditions in segregation were unusually harsh or substandard.

In summary, Plaintiff’s stay in segregation was too short to give rise to a protected liberty

interest, particularly without any allegation that the conditions therein were unduly harsh. Without

a protected liberty interest, there can be no due process violation. As such, Plaintiff’s Amended

Complaint must be dismissed.

Motions for Recruitment of Counsel

Plaintiff has filed Motions for Recruitment of Counsel (Docs. 2 and 9), which are

DENIED.3 Plaintiff did not provide sufficient information for the Court to determine if he has

made a reasonable effort to obtain counsel on his own. His first Motion included a single denial

letter and his second Motion does not describe any further attempts to contact other attorneys.

3 In evaluating Plaintiff’s Motion for Recruitment of Counsel, the Court applies the factors discussed in Pruitt v. Mote,

503 F.3d 647, 654 (7th Cir. 2007) and related authority.

(Docs. 2 and 9). Further, other than the fact that his highest level of education is grammar school,

he provides no reasons that suggest he is unable to litigate the matter himself at this early stage.

Plaintiff’s pleadings demonstrate an ability to construct coherent sentences and relay information

to the Court. Thus, the Court finds that Plaintiff is capable of proceeding pro se, at least for now

and the motion is denied. The Court will remain open to the appointment of counsel in the future.

Disposition

Plaintiff’s Amended Complaint (Doc. 6) is DISMISSED without prejudice. Plaintiff’s

Motion for Service of Process at Government Expense (Doc. 8) is DENIED as moot. Plaintiff’s

Motions for Recruitment of Counsel (Docs. 2 and 9) are DENIED without prejudice.

Plaintiff is GRANTED leave to file a “Second Amended Complaint” on or before March

20, 2020. Should Plaintiff fail to file his Second Amended Complaint within the allotted time or

consistent with the instructions set forth in this Order, the entire case shall be dismissed with

prejudice for failure to comply with a court order and/or for failure to prosecute his claims. FED.

R. CIV. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v.

Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2).

An amended complaint supersedes and replaces the existing complaints, rendering the prior

complaints void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1 (7th Cir.

2004). The Court will not accept piecemeal amendments. Thus, the Second Amended Complaint

must stand on its own, without reference to any previous pleading, and Plaintiff must re-file any

exhibits he wishes the Court to consider along with the Second Amended Complaint. The Second

Amended Complaint is subject to review pursuant to 28 U.S.C. § 1915A.

Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was

incurred at the time the action was filed, thus the filing fee remains due and payable, regardless of

whether Plaintiff elects to file a Second Amended Complaint. See 28 U.S.C. § 1915(b)(1); Lucien

v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).

Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of

Court and each opposing party informed of any change in his address; the Court will not

independently investigate his whereabouts. This shall be done in writing and not later than 7 days

after a transfer or other change in address occurs. Failure to comply with this Order will cause a

delay in the transmission of court documents and may result in dismissal of this action for want of

prosecution. See Fed. R. Civ. P. 41(b).

IT IS SO ORDERED.

DATED: February 21, 2020

/s/ Staci M. Yandle

STACI M. YANDLE

U.S. District Judge