Brand v. Jeffreys

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CROSETTI BRAND,

#M02369,

Plaintiff, Case No. 20-cv-00602-SPM

v.

ROB JEFFREYS, et al.,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

This matter is before the Court on a Motion to Dismiss for Lack of Jurisdiction filed by

Defendants Jeffreys, Toennies, and Westbrook pursuant to Federal Rules of Civil Procedure

12(b)(1). (Doc. 31). Plaintiff Crosetti Brand filed a response in opposition. (Doc. 35). For the

following reasons, the motion is granted.

BACKGROUND

Plaintiff Crosetti Brand, who is proceeding pro se, commenced this action claiming

constitutional violations pursuant to 42 U.S.C. § 1983 and violations of Illinois state laws. (Doc.

1). He asserts that on May 29, 2019, while incarcerated at Centralia Correctional Center, he was

served a disciplinary report. (Doc. 16, p. 5). Brand completed the witness request form at the

bottom of the disciplinary report, listing Officer Keck as a witness, and returned the form to Officer

Brassel. On May 30, 2019, Brand appeared before the Adjustment Committee for a hearing on the

disciplinary report. (Id.). Adjustment Committee Members Toennies and Westbrook confirmed

that they had received Brand’s witness request form but refused to call Brand’s witness. (Id. at p.

6). Toennies and Westbrook did not provide any explanation for why he was not allowed to call

his witness. They also failed to conduct any further investigation into Brand’s written statement.

of C-grade, one month of segregation, and a disciplinary transfer. (Id. at p. 7). He filed a grievance

about the improper procedures during the hearing. (Id.). The grievance was ultimately denied by

the Administrative Review Board, and IDOC Director Jeffreys upheld the denial. (Id. at p. 8).

However, on September 18, 2020, Director Jeffreys restored the thirty days of good time credits.

(Id.). Brand requests monetary damages and injunctive relief.

After reviewing the Frist Amended Complaint pursuant to 28 U.S.C. § 1915A, Brand is

proceeding on a single count against Toennie and Westbrook for failing to provide Brand a fair

and impartial disciplinary hearing on May 30, 2019, in violation of the Fourteenth Amendment

(Count 1).1 The Court noted that the only punishment that implicated a liberty interested requiring

due process, as pled in the First Amended Complaint, was the revocation of good time credits.

(Doc. 23, p. 3). Because Brand pled that his good time credits had been restored, the Court assumed

that the disciplinary decision had been invalidated, and his claim was not barred by Heck v.

Humphrey, 512 U.S. 477, 480-81 (1994).

MOTION TO DISMISS

Defendants have filed a motion to dismiss this case pursuant to Federal Rule of Civil

Procedure 12(b)(1) arguing that the Court does not have subject matter jurisdiction to adjudicate

this matter. (Doc. 31). Defendants, however, put forth arguments regarding not only mootness but

also that Brand has failed to state a claim. In the “Legal Standard” section, Defendants assert that

because Brand’s good time credits were restored and he never served additional time, his

underlying case is moot. In discussing the legal standard for mootness, Defendants cite to a case

brought under the habeas statute 28 U.S.C. §2241, in which Judge Dugan found the petitioner’s

habeas petition moot because his good conduct credit had been restored. (Doc. 31, p. 3) (citing

1 Director Jeffreys remains in this case in his official capacity to implement any injunctive relief that may be ordered.

(Doc. 23, p. 6).

Judge Dugan reasoned that the habeas petition was moot because the Court could not give the

petitioner any further effective relief under Section 2241, which only allows for the immediate or

earlier release from custody. Waugh, 2021 U.S. Dist. Lexis at *2 (citing A.M. v. Butler, 360 F. 3d

787, 790 (7th Cir. 2004)).

In the “Argument” section of the motion, Defendants argue that because Brand’s credits

were restored with no increase in the length of his sentence, he does not have a “cognizable civil

rights claim.” (Doc. 31, p. 4). In support of this argument, Defendants reference cases where the

Seventh Circuit and district courts discuss whether the plaintiff had failed to state a claim for a due

process violation under Section 1983, not mootness. (Doc. 31, p. 3-4) (citing Morissette v. Peters,

45 F. 3d 1119, 1122 (7th Cir. Jan. 24, 1995); Trainauskas v. Fralicker, No. 18-cv-193-NJR, 2018

WL 118367, at *4 (S.D. Ill. Mar. 7, 2018); Lopez v. Bergee, No. 17-3306, 2018 WL 2305691, at

*2 (C.D. Ill. May 21, 2018); Sanchez v. Godinez, No. 14-cv-275-JPG, 2014 WL 1097435, at *2

(S.D. Ill. Mar. 20, 2014); Henderson v. Rednour, No. 12-1113-GPM, 2012 WL 5844685, at *2

(S.D. Ill. Nov. 19, 2012)).

Brand opposes the motion and claims that his case is not moot simply because Defendants

ended their unlawful conduct. (Doc. 35). Furthermore, while his good time credits have been

restored, he can still obtain damages.

The Court agrees with Brand that his case is not moot and finds that Rule 12(b)(6) is the

more appropriate rule to invoke in seeking dismissal of this case. First, the Waugh case cited to by

Defendants regarding mootness is not applicable here. Brand has brought his case pursuant to

Section 1983, not Section 2241, which allows a party to recover injunctive and monetary relief.

See Thomas v. Ill. 697 F. 3d 612, 614 (7th Cir. 2012). The mere fact that injunctive relief in the

form a restoration of his good time credits was never available to him as a remedy does not moot

Bartholomew Consol. School Corp., 442 F. 3d 588, 596 (7th Cir. 2006); Calhoun v. DeTella, 319

F. 3d 936, 941 (7th Cir. 2003). Second, jurisdiction is not defeated by the “possibility that the

averments might fail to state a proper cause of action on which [Brand] could actually recover.”

Bell v. Hood, 327 U.S. 678, 681-82 (1946).Whether Brand has a cause of action “calls for a

judgment on the merits and not for a dismissal for want of jurisdiction.” Id. at 682.

The Seventh Circuit has explicitly stated that if a Rule 12(b)(1) motion to dismiss “is an

indirect attack on the merits of the plaintiff’s claim, the court may treat the motion as if it were a

Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.”

Peckmann v. Thompson, 966 F. 2d 295, at *297 (7th Cir. 1992). Thus, the Court will assess the

motion as brought pursuant to Rule 12(b)(6).

The purpose of a motion to dismiss under Rule 12(b)(6) is to address the legal sufficiency

of the plaintiff’s claim for relief, not the merits of the case or whether the plaintiff will ultimately

prevail. Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014); Gibson v. City

of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). In reviewing a motion to dismiss under Rule 12(b)(6),

the Court must construe the complaint in the light most favorable to the plaintiff, accept as true all

well-pleaded facts, and draw all possible inferences in the plaintiff’s favor. See, e.g., Hecker v.

Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (quoting Tamayo v. Blagojevich, 526 F.3d 1074,

1081 (7th Cir. 2008)). To survive a motion to dismiss, the complaint must allege facts sufficient

to “‘state a claim to relief that is plausible on its face’ and ‘raise a right to relief above the

speculative level.’” Camasta, 761 F.3d at 736 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)).

It is clear, based on the allegations of the First Amended Complaint, that Brand has failed

to assert a cognizable claim. Even assuming that Brand was not afforded constitutional due process

Brand never served any additional time. According to his exhibits,2 his projected out date, with or

without the credits, was not until 2023. (Doc. 16, p. 13). Brand’s good time credits were restored

on September 18, 2020. (Id.).The “protections of due process clause do not attach unless [Brand]

was deprived of a liberty interest.” See Phelps v. McCoy, 189 F. App’x 528, 529 (7th Cir. 2006)

(finding “no basis for a federal suit” when the plaintiff had his good time credits restored prior to

service). Because Brand’s good time credits were restored to him, he did not suffer an actual

increase in his sentence resulting in a deprivation of a liberty interest. See Powell v. Cadwell, 42

F. App’x 821, 822 (7th Cir. 2002) (finding no deprivation where, following a rehearing, the

plaintiff’s good time credit was restored); Jacobo v. Holder, No. 15-cv-0703-MJR-SCW, 2016

WL 5341197, at *7 (S.D. Ill. Sept. 23, 2016) (finding the plaintiff failed to state a claim for relief

because he alleged the credits were restored to him (citing Whitford v. Boglino, 63 F. 3d 527, 529-

30 (7th Cir. 1995))); Moreno v. McCann, No. 06-044-JPG, 2006 WL 2460565, at *3 (S.D. Ill.

Aug. 23, 2006) (finding the plaintiff had failed to state a claim where exhibits demonstrated all

good time credits were restored); Peck v. Davis, 444 F. Supp. 2d 941 (N.D. Ind. 2006). See also

Morissette, 45 F. 3d at 1122 n. 4 (finding no due process violation where the Administrative

Review Board reversed the disciplinary action and the plaintiff did not serve any additional time

in segregation); Shigemura v. Duft, 111 F. App’x 843 (7th Cir. 2004) (plaintiff suffered a

deprivation of a liberty interest where he served three additional months before his good time

credits were restored). Without a deprivation, no due process is required. Accordingly, Brand has

failed to state a claim for denial of due process under Section 1983. The motion to dismiss is

GRANTED.

2 For the purpose of a Rule 12(b)(6) motion, the pleadings include the First Amended Complaint and any written

instruments attached to the First Amended Complaint as exhibits. See Phillips v. Prudential Ins. Co. of America, 714

F. 3d 1017, 1019-20 (7th Cir. 2013).

For the reasons stated above, the motion to dismiss filed by Defendants is GRANTED.

(Doc. 31).The First Amended Complaint and this entire case are DISMISSED with prejudice

pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim.

The motion for status filed by Plaintiff Brand is DENIED as moot in light of this Order.

(Doc. 39).

Brand is ADVISED that his obligation to pay the filing fee for this action was incurred at

the time the action was filed, so the filing fee of $350.00 remains due and payable. 28 U.S.C. §

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

If Brand wishes to appeal this dismissal, his notice of appeal must be filed with this Court

within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for leave to appeal

in forma pauperis should set forth the issues he plans to present on appeal. See FED. R. APP. P.

24(a)(1)(C). If Brand does choose to appeal, he 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). 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 close this case and enter judgment accordingly.

IT IS SO ORDERED.

DATED: November 7, 2022

s/Stephen P. McGlynn

STEPHEN P. MCGLYNN

United States District Judge