Torres v. Brookman

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

NORBERTO TORRES, )

#R74153, )

)

Plaintiff, )

)

vs. ) Case No. 19-cv-00248-SPM

)

KENT E. BROOKMAN, and )

JASON N. HART, )

)

Defendants. )

MEMORANDUM AND ORDER

McGLYNN, District Judge:

Now before the Court is Defendants’ Motion for Summary Judgment (Doc. 40). Plaintiff

Norberto Torres filed a response in opposition (Doc. 46). As explained below, the motion will be

granted.

BACKGROUND

In this pro se civil rights lawsuit, Plaintiff claims that Defendants violated his constitutional

right to due process when they found him guilty of a disciplinary infraction that had previously

been expunged, which resulted in his confinement in punitive segregation for three months at

Menard Correctional Center (“Menard”). The second Inmate Disciplinary Report (“IDR”) was also

ultimately expunged, but not before Plaintiff completed serving his segregation time. Plaintiff is

currently confined at Pinckneyville Correctional Center (“Pinckneyville”). (Doc. 39).

Upon initial review of the Complaint, the Court permitted Plaintiff to proceed on two

counts (Doc. 9). Subsequently, Count 2 (an Eighth Amendment claim for unsanitary cell

conditions) and one Defendant were dismissed from the action for Plaintiff’s failure to exhaust his

administrative remedies. (Doc. 20). The case now consists of a single count:

Count 1: Fourteenth Amendment procedural due process claim against

Brookman and Hart for convicting Plaintiff on the same disciplinary

charge which they had previously expunged and for failing to

provide him with adequate opportunity to prepare by not producing

the alleged document which was the basis of the charges.

(Doc. 9, p. 3).

RELEVANT FACTS

On March 9, 2017, Plaintiff was incarcerated at Menard, and was issued IDR Number

201700365/1-MEN (the “365 Ticket”) for the offense of 205/Security Threat Group (“STG”)

organizational activity. (Doc. 41-4, pp. 1-2). The ticket was based on a handwritten “Latin Folk”

questionnaire containing Plaintiff’s name and information and allegedly matching his handwriting.

The document had been found by Pontiac Correctional Center officials among the belongings of

another inmate who had just transferred from Menard to Pontiac. (Doc. 1, p. 11; Doc. 41-4, p. 2).

Defendants Brookman and Hart, as the Adjustment Committee, conducted the disciplinary hearing

on the 365 Ticket on March 15, 2017, and expunged the charge. (Doc. 1, pp. 6, 13; Doc. 41-4, p.

1).

Two days later, on March 17, 2017, Plaintiff was issued IDR Number 2017-00409/1-MEN,

(the “409 Ticket”) for the same 205 offense based on the same gang-related document. (Doc. 41-

4, pp. 3-5). This ticket included the additional information that handwriting samples from

Plaintiff’s master file were compared to the questionnaire to conclude that Plaintiff wrote it, and

stated that Plaintiff was a self-admitted member of a gang affiliated with the Latin Folk. (Doc. 41-

4, p. 5). On March 22, 2017, Brookman and Hart again served as the Adjustment Committee for

the hearing on this ticket. Plaintiff asserted he did not write the questionnaire, but they found

Plaintiff guilty, punishing him with 3 months in segregation as well as loss of privileges. (Doc. 1,

pp. 6, 14; Doc. 41-4, p. 3). Defendants note that they merely recommended the punishment, and

the warden made the final determination of guilt and sanctions. (Doc. 41, p. 4).

Plaintiff maintains that he requested a witness prior to the hearing on the 365 Ticket via

institutional mail, but Defendants did not contact the witness. (Doc. 46, pp. 8, 15). During the

hearing on the 409 Ticket, Plaintiff requested a hearing investigator to interview that witness and

to investigate the validity of the handwritten questionnaire, but Defendants declined to do so. (Doc.

46, p. 8). Defendants state they have no recollection of whether Plaintiff requested a witness at

either hearing, but note Plaintiff did not request a witness on either disciplinary ticket. (Doc. 41,

pp. 4-5).

Plaintiff filed a grievance challenging the discipline imposed as a result of the 409 Ticket.

(Doc. 1, pp. 21-23; Doc. 41-5, pp. 5-7). He asserted that he had never been informed of any

investigation, was not provided with a hearing investigator, was denied the ability to call witnesses

to be interviewed, and could not prepare a defense because he was never given a copy of the

document that prompted the IDR or the documents relied upon to conclude that the handwriting

on the “Latin Folk” questionnaire was Plaintiff’s. The grievance officer noted that Plaintiff was

guilty of the offense, but the ticket was expunged on June 15, 2017 because the hearing was not

conducted in accordance with Department Rule 504. (Doc. 1, pp. 25-26; Doc. 41-5, pp. 3-4).

Plaintiff asserts that his segregation cell was unsanitary because the toilet was

malfunctioning, causing “smelly mold” to grow on the side of the toilet, and Plaintiff and his

cellmate were not given any cleaning supplies. (Doc. 1, p. 7). In his deposition, Plaintiff testified

that the toilet was “polluted” with insects, mildew, and rust, and that he was breathing in rust while

in the cell. (Doc. 41-1, p. 58). Those conditions were not remedied for the duration of his three

month segregation term. (Doc. 1, p. 7).

LEGAL STANDARDS

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary

judgment is proper only if the moving party can demonstrate “that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(a); see Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012). The moving party has the

burden of establishing that no material facts are genuinely disputed. Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986); Cincinnati Life Ins. Co. v. Beyrer, 722 F. 3d 939, 951 (7th Cir. 2013). Any

doubt about the existence of a genuine issue must be resolved in favor of the nonmoving party.

Lawrence v. Kenosha Cnty., 391 F.3d 837, 841 (7th Cir. 2004).

When presented with a motion for summary judgment, the Court does not decide the truth

of the matters presented, and it cannot “choose between competing inferences or balance the

relative weight of conflicting evidence.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832, 836 (7th Cir. 2014) (citations

omitted). Once a properly supported motion for summary judgment is filed, the adverse party

“must set forth specific facts showing there is a genuine issue for trial.” Anderson, 477 U.S. at 250.

The Court must then “view all the evidence in the record in the light most favorable to the non-

moving party and resolve all factual disputes in favor of the non-moving party.” Hansen, 763 F.3d

at 836. A genuine issue of material fact exists when “the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; accord Estate of

Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017).

B. Due Process Standard

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

life, liberty, and property.” Isby v. Brown, 856 F.3d 508, 524 (7th Cir. 2017); Marion v. Radtke,

641 F.3d 874, 875 (7th Cir. 2011). Procedural due process protections for prison disciplinary

proceedings require that the inmate receive “advance written notice of the charges, the chance to

present testimony and documentary evidence to an impartial decisionmaker, and a written

explanation” of the decision. Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006) (citations

omitted). See also Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974). In addition, the decision of

the adjustment committee must be supported by “some evidence.” Scruggs v. Jordan, 485 F.3d

934, 941 (7th Cir. 2007). Even a meager amount of supporting evidence is sufficient to satisfy this

inquiry. Id.

Demotion to C-grade status and loss of commissary and/or visitation privileges do not

implicate a liberty interest. Thomas v. Ramos, 130 F.3d 754, 762 n.8 (7th Cir. 1997) (collecting

cases) (there is no protected liberty interest implicated in demotion to C-grade status or loss of

certain privileges); see also, Woody v. Zatecky, 594 F. App’x 311, 312 (7th Cir. 2015). And an

inmate’s liberty interest in avoiding segregation is limited. Hardaway v. Meyerhoff, 734 F.3d 740,

743 (7th Cir. 2013). A protected liberty interest is triggered only when segregation “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). In assessing whether disciplinary segregation

amounts to a constitutional violation, the Court must take into consideration “the combined import

of the duration of the segregative confinement and the conditions endured.” Hardaway, 734 F.3d

at 743; Marion v. Columbia Corr. Inst., 559 F.3d 693 (7th Cir. 2009).

DISCUSSION

The fact that Plaintiff’s 409 ticket was expunged because the disciplinary hearing failed to

comply with an IDOC procedural rule does not mean that a constitutional violation occurred.

Likewise, having been found guilty of the 409 ticket after the initial 365 ticket was expunged did

not, in and of itself, violate Plaintiff’s due process rights. See Meeks v. McBride, 81 F.3d 717, 721-

22 (7th Cir. 1996) (“[A]n acquittal in an earlier prison disciplinary hearing is no bar to a subsequent

hearing to consider the very same charge.”). Instead, the Court applies the standards outlined in

the section above when assessing Plaintiff’s civil rights claims. Two issues may implicate

procedural due process concerns: Plaintiff’s request for a witness and his inability to review the

documents relied upon to find him guilty.

Some facts are in dispute regarding the witness request. Plaintiff insists he made a written

request for a witness (a fellow inmate) prior to the first disciplinary hearing, and he renewed that

request for the second hearing, but Defendants deny that Plaintiff requested witnesses. (Doc. 46,

pp. 8-9, 14-15; Doc. 41, p. 5). Defendants also do not recall whether Plaintiff asked for a witness

during either hearing. (Doc 41, pp. 4-5). Defendants note that Plaintiff did not write a witness

request on either of the disciplinary tickets, and Plaintiff does not deny that point. Construing the

disputed facts in Plaintiff’s favor at this stage, the Court presumes that Plaintiff could show that

he requested a witness but Defendants refused to obtain that person’s testimony. No evidence has

been put forth by Defendants to indicate that security or institutional concerns prevented them

from granting Plaintiff’s request to call the witness. See Wolff, 418 U.S. at 566 (prisoner has a right

to call witnesses in disciplinary proceeding unless doing so would jeopardize institutional safety

or correctional goals).

Plaintiff was given advance written notice of the charge against him, but it is undisputed

that during the disciplinary process, Plaintiff did not receive a copy of the gang questionnaire

allegedly written by him, and he was never shown the documents that Defendants relied on to

conclude that the handwriting on that questionnaire was Plaintiff’s. (Doc. 46, pp. 9-12, 14).

Material exculpatory evidence must be disclosed in prison disciplinary proceedings if timely

requested, unless disclosure “would unduly threaten institutional concerns.” Jones v. Cross, 637

F.3d, 841, 847 (7th Cir. 2011); see also Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir. 2003).

However, prison officials are not required to provide irrelevant or inculpatory evidence. Jones,

637 F.3d at 848; Scruggs, 485 F.3d at 939-40.

Here, the documents in question are not part of the record, so their exculpatory or

inculpatory nature cannot be independently assessed. During the pendency of this case, Plaintiff

has had the opportunity to conduct discovery. The “documents related to the resolution of” his

disciplinary ticket should have been provided to him by Defendants, and Plaintiff could have

specifically requested any that were not disclosed. (Doc. 18, p. 2; Doc. 29). Plaintiff has not filed

any motion claiming that he was denied access to relevant documents during discovery. Notably,

Plaintiff does not assert that the handwritten questionnaire or handwriting samples would have

proved him innocent, and he did not include copies of the documents with his response to the

motion for summary judgment. (Doc. 46). Instead, Plaintiff relies on the arguments that he should

have been permitted to see the documents during the disciplinary proceedings since they were part

of the charge against him, and that Defendants should have independently investigated the

reliability of the documents. (Doc. 46, p. 6). Of course, in the opinion of the IDOC reviewing

officer who examined the documents, the gang questionnaire and handwriting samples were not

exculpatory but instead confirmed Plaintiff’s guilt of the charged infraction. Defendants were

entitled to rely on the investigator’s report, and no legal authority requires them to conduct a

separate investigation.

Plaintiff has not set forth any evidence from which the Court could conclude that the

withheld documents would have been exculpatory. The record is devoid of facts to support a

finding that Plaintiff was denied his procedural due process right to see exculpatory evidence in

the disciplinary proceeding. As such, there is no genuine issue of material fact on this issue.

Further, the evidence considered by Defendants in the hearing – the gang questionnaire

and the written report of the officer who examined the documents and concluded Plaintiff was the

author – satisfies the requirement that “some evidence” exists to support the disciplinary finding.

See Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000) (the “some evidence” standard “is a

lenient standard, requiring no more than a modicum of evidence”) (internal citations and

quotations omitted).

Giving Plaintiff the benefit of the doubt, the evidence now before this Court might support

a finding that Defendants’ failure to call or interview his witness amounted to a denial of his

procedural due process rights. However, that is not the end of the analysis. Even if a procedural

violation occurred, Plaintiff’s substantive due process rights are only implicated if his term in

segregation was of a duration and included conditions that together imposed an “atypical and

significant hardship” on him. Notably, the proper comparison is between conditions in punitive

segregation as opposed to administrative (non-punitive) segregation. Sandin v. Conner, 515 U.S.

472, 484 (1995); see also Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997).

Here, Plaintiff is serving a 60-year prison term according to the online records of the

IDOC.1 Courts have dismissed due process claims based on relatively short periods of disciplinary

1 Https://www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx (last visited Sept. 14, 2022). Plaintiff

also testified to the length of his sentence. (Doc. 41-1, p. 13). Defendants incorrectly stated that Plaintiff is

serving a life sentence. (Doc. 41, p. 9).

segregation without inquiry into the specific conditions of confinement. See Marion, 559 F.3d at

698; Townsend v. Fuchs, 522 F.3d 765, 766 (7th Cir. 2008) (59 days); Hoskins v. Lenear, 395 F.3d

372, 374-75 (7th Cir. 2005) (two months); Thomas v. Ramos, 130 F.3d 754, 761 (7th Cir. 1997)

(70 days in disciplinary segregation was “a relatively short period when one considers [plaintiff’s]

12 year prison sentence”). Viewed in the context of Plaintiff’s 60-year sentence, a three-month

period in punitive segregation is a minuscule part of Plaintiff’s imprisonment.

As to the conditions of Plaintiff’s segregation confinement, he was initially without a

mattress but received it (along with bedding and his personal property and legal papers) within

three or four days of being placed in the segregation cell. (Doc. 46, p. 16). The toilet did not work

properly, resulting in mold and mildew in the cell, and the cell was infested with insects. Id.

Plaintiff does not elaborate further on the cell conditions. While these conditions were substandard,

Plaintiff does not allege that he suffered physical or mental harm or substantial risk to his health

because of his three-month confinement in the cell. More to the point, Plaintiff’s allegations do

not rise to the level of “evidence that would allow a jury to determine that the conditions in

segregation deviated substantially from ordinary conditions of his confinement.” Lisle v. Welborn,

933 F.3d 705, 721 (7th Cir. 2019) (vague description of rust on cell bars and “corroded feces” in

toilet was insufficient to overcome summary judgment on due process claim for four months in

segregation). See also McCoy v. Atherton, 818 F. App’x 538, 541-42 (7th Cir. 2020) (three months

in segregation in a dirty cell near physically and mentally ill inmates did not impose an atypical

and significant hardship).

While Plaintiff may have been denied his ability to have witness testimony considered in

his disciplinary proceeding, the evidence before the Court regarding his three-month disciplinary

confinement in the segregation cell is not sufficient for a reasonable jury to find that Plaintiff was

subjected to an atypical and significant hardship amounting to a due process violation.

Accordingly, Defendants’ motion for summary judgment will be granted. In light of this

conclusion, it is not necessary for the Court to address the parties’ arguments on qualified

immunity.

DISPOSITION

IT IS HEREBY ORDERED that the Motion for Summary Judgment (Doc. 40) filed by

Defendants Brookman and Hart is GRANTED. This case is DISMISSED in its entirety with

prejudice.

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

IT IS SO ORDERED.

DATED: September 15, 2022

s/ Stephen P. McGlynn__

STEPHEN P. McGLYNN

United States District Judge