Brown v. Wills

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

KENYATTA BROWN,

#K79185,

Plaintiff,

Case No. 21-cv-00129-SPM

v.

A. WILLS,

DAVE WHITE,

JEFF MULHOLLAND, and

H. PRICE,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

Plaintiff Kenyatta Brown, an inmate of the Illinois Department of Corrections who is

currently incarcerated at Menard Correctional Center (“Menard”), brings this civil action pursuant

to 42 U.S.C. § 1983 for violations of his constitutional rights. Brown claims that Menard has an

unconstitutional policy of denying inmates daily use of the telephones. He requests monetary

damages and injunctive relief.

The Complaint is now before the Court for preliminary review pursuant to 28 U.S.C. §

1915A. Under Section 1915A, any portion of a complaint that is legally frivolous, malicious, fails

to state a claim upon which relief may be granted, or requests money damages from a defendant

who by law is immune from such relief must be dismissed. See 28 U.S.C. § 1915A(b). At this

juncture, the factual allegations of the pro se Complaint are to be liberally construed. Rodriguez v.

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

THE COMPLAINT

Brown alleges that he transferred from Stateville Correctional Center to Menard on January

7, 2020. (Doc. 1, p. 7). At Menard, inmates are allowed to use the phones in the living units once

a week on average. For nine days, Brown was housed in North 1, were the “prison workers” reside.

Inmates in North 1 are allowed to use the phones in the living unit every two days.

After learning that all cellhouses, except for North 1, limited phone use to once a week,

Brown filed a grievance. (Id.). In the grievance, Brown wrote that out of the three maximum

security prisons in Illinois, Menard is the only prison that does not offer inmates the opportunity

to use the phones daily. (Id. p. 7-8). Counselor Price replied to his grievance noting that Brown

was allowed to use the phone in the unit every four days and suggested to Brown to attend yard if

he wanted additional phone usage. Grievance Officer Mulholland concurred in Price’s findings

and in the grievance response, Mulholland listed the number of times that Brown used the phones

on the yard and in his living unit over a three week period during March 2020. (Id. at p. 8, 18).

The total came to thirty-one times.

Brown asserts that the responses to his grievance were misleading. First, he was grieving

about phone usage in his living unit, not on the yard. The suggestion the yard time was available

to make telephone calls was inaccurate because during the pandemic, yard time was restricted at

times, and phone usage time was not increased in the living units. (Id.). Specifically, in August

2020, the phones on the yard were shut off, and inmates were limited to yard time once per week

to prevent the spread of COVID-19. Again, the phone usage in the living units stayed at three to

five times a week. (Id.). The phone usage had increased from once weekly to every three to five

days due to COVID-19 policies increasing phone usage for inmates. However, Stateville

Correctional Center and Pontiac Correctional Center, the other maximum security prisons,

increased inmates’ phone usage to multiple times a day. (Id. at p. 11).

The report that Brown had made thirty-one calls in March 2020 was also misleading

because many of his calls are made to multiple people during a single twenty minute time period.

An inmate is given only twenty minutes to call out before his account is suspended for thirty-five

minutes. This policy forces inmates to try and call multiple people for a few minutes each.

Warden Wills concurred in the denial of his grievance. Brown timely appealed the

grievance to the Administrative Review Board, but Administrative Review Board Member, Dave

White, denied the grievance as untimely.

Brown made multiple complaints to mental health concerning the effect of not being able

to communicate with his family. (Doc. 1, p. 12). He has a history of anxiety and depression, and

his treatment consists, in part, of communication with family and loved ones. (Id.).

DISCUSSION

Based on the allegations of the Complaint, the Court finds it convenient to designate the

following counts:

Count 1: Fourteenth Amendment due process claim against Price,

Mulholland, and White in mishandling his grievance regarding

telephone use at Menard.

Count 2: Eighth Amendment claim against Wills for denying Brown the

ability to use the telephone daily.

Count 3: Equal protection claim against Wills for denying Brown the ability

to use the telephone daily.

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. 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”).

Count 1

“Prison grievance procedures are not constitutionally mandated by the First Amendment

and do not by their very existence create interests protected by the Due Process Clause” of the

Fourteenth Amendment. Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). In fact, the

Constitution requires no procedure at all, and the failure of state prison officials to follow their

own procedures does not, standing alone, violate the Constitution. Maust v. Headley, 959 F.2d

644, 648 (7th Cir.1992); Shango v. Jurich, 681 F.2d 1091, 1100–01 (7th Cir.1982). Therefore, the

misstatement of facts in the grievance responses and the failure to fully investigate Brown’s

assertions by Counselor Price and Grievance Officer Mulholland, as well as the denial of the

grievance by ARB Member White, absent any personal involvement in an underlying alleged

deprivation, states no claim for relief. Additionally, the Constitution does not recognize an

inmate’s liberty interest in telephone privileges. See Sandin v. Connor, 515 U.S. 472 (1992);

Arsberry v. Ill., 244 F.3d 558, 564 (7th Cir. 2001); Aldin v. Ill. Dept’ of Corr., No. 08-cv-343-

MJR, 2009 WL 1309343, at *2 (S.D. Ill. May 11, 2009). Thus, Count 1 is dismissed.

Count 2

The telephone use policy at Menard also does not amount to cruel and unusual punishment.

Prior to the implementation of COVID-19 policies, Brown had access to the telephones once per

week in his living unit and at additional times during yard. After the implementation of the

COVID-19 policies, he had access to the telephone every three to five days in his living unit. He

also could access the telephone in the yard when movement was not restricted. Despite this

availability, Brown believes that he should have access to a telephone in his living unit daily.

Brown has multiple occasions each week to use the telephone, and he has not alleged that

he has been restricted in any way from communicating with family in friends via letters. The denial

of daily use of the telephone is “not sufficiently serious to rise to the level of an Eighth Amendment

violation,” and the “contention is frivolous.” Ashley v. Seamon, 32 F. App’x 747, 750 (7th Cir.

2002) (ruling that the district court correctly determined that denial of phone calls, cigarettes,

television, radio, and reading materials while in segregation did not violate the Eighth

Amendment). Thus, Count 2 is dismissed.

Count 3

Brown alleges that Warden Wills violated his right to equal protection under the Fourteenth

Amendment because Warden Wills implemented more restrictive telephone policies at Menard

compared to those at other maximum security facilities. (Doc. 1, p. 13). Brown seems to believe

that since Menard is classified as a maximum security facility, its policies concerning telephone

usage should exactly mirror other maximum security facilities. This is incorrect. “There is no

constitutional provision which entitles a state prisoner to a particular set of conditions or to

conditions of confinement identical with those of every other inmate in a particular institution.”

Buchanan v. Duckworth, 958 F. 2d 374 (7th Cir. 1992). Accordingly, there is no guarantee that

Brown will receive the exact same privileges as an inmate at any other state facility, regardless of

what “level” that institution has been classified.

Furthermore, Brown never alleges that Warden Wills acted with any kind of discriminatory

purpose or that he or his fellow inmates at Menard were singled out for adverse treatment. See

Meriwether v. Faulkner, 821 F.2d 408, 415 n.7 (7th Cir.), cert. denied, 484 U.S. 935 (1987) (citing

Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982)). See also Nabozny v. Podlesny, 92 F.3d

446, 453-54 (7th Cir. 1996). Rather, his claims reflect that prison administrators have discretion

to implement policies which may vary from those in other institutions. A prison does not cross the

line to an equal protection violation merely by having different rules than its counterpart

institutions. See Durso v. Rowe, 579 F. 2d 1365, 1372 (7 Cir. 1978). For these reasons, Brown has

failed to state a claim under the Equal Protection Clause, and Count 3 is dismissed.

MOTION FOR APPOINTMENT OF COUNSEL

Brown has filed a Motion for Recruitment of Counsel (Doc. 3), which is DENIED. 1

Brown has failed to meet his threshold burden of demonstrating he has made a reasonable attempt

to secure counsel on his own. He does not describe his efforts to contact attorneys, and only states

that “they’ve either failed to respond to my letter or declined.” Brown includes a letter from a law

firm declining representation, but contacting one law firm does not establish the reasonable effort

required on the part of a plaintiff before he may seek assistance from the Court in obtaining

representation. Accordingly, his request for court recruited counsel is denied.

DISPOSITION

For the reasons stated above, Counts 1, 2, and 3 are DISMISSED, and therefore, the

Complaint does not survive preliminary review pursuant to 28 U.S.C. § 1915A. Given that

Brown’s claims regarding access to the telephones do not establish viable theories of liability under

the Eighth or Fourteenth Amendments, the Court finds that allowing further amendment would be

futile. See Barry Aviation, Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 687 (7th

Cir. 2004).Thus, the Court finds it appropriate to DISMISS the case with prejudice for failure to

state a claim. This dismissal shall count as a strike under the provisions of 28 U.S.C. 1915(g).

The Motion for Recruitment of Counsel (Doc. 3) is DENIED.

Brown is 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 of $350.00 remains due and payable. See 28 U.S.C.

§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).

If Brown wishes to appeal this Order, he must file a notice of appeal with this Court within

thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). If Brown chooses to appeal, he

1 In evaluating the 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.

will be liable for the $505.00 appellate filing fee irrespective of the outcome of the appeal. See

FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir.

2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien, 133 F.3d at 467. Moreover,

if the appeal is found to be nonmeritorious, Brown may incur another “strike” under 28 U.S.C. §

1915(g). A proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) may

toll the 30-day appeal deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed no more

than twenty-eight (28) days after the entry of the judgment, and this 28-day deadline cannot be

extended.

The Clerk of Court is DIRECTED to enter judgment accordingly and close the case.

IT IS SO ORDERED.

DATED: September 27, 2021

s/Stephen McGlynn

STEPHEN P. MCGLYNN

United States District Judge