Alvarez v. Thompson

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JESSE ALVAREZ, )

)

Plaintiff, )

)

vs. ) Case No. 3:19-cv-01163-GCS

)

DEREK CLELAND, )

KALE LIVELY, )

CAROL MCBRIDE, )

MARCUS MYERS, )

ROB JEFFREYS, in his official capacity )

only, )

SCOTT THOMPSON, )

and )

JON URASKI, )

)

Defendants.1 )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

I. INTRODUCTION

Pending before the Court is Defendants’ motion for summary judgment (Doc. 84,

85).2 Specifically, Defendants argue that Defendants Cleland, Lively, Uraski, and

Thompson lack sufficient personal involvement to be held liable under Section 1983 for

1 Rob Jeffreys is named in his official capacity only as the Director of the Illinois Department of

Corrections for the purpose of implementing any Court ordered injunctive relief. (Doc. 15).

2 Along with the motion for summary judgment, Defendants filed the required Federal Rule of Civil

Procedure 56 notice informing Plaintiff of the consequences of failing to respond to the motion for summary

judgment and what is required in responding to the motion. (Doc. 86).

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violations of Plaintiff Jesse Alvarez’s due process rights under the Fourteenth

Amendment. They further argue that Plaintiff received all the due process protections

required during the prison disciplinary hearing. Alternatively, Defendants argue they are

entitled to qualified immunity. Plaintiff opposes the motion arguing that Defendants

violated his due process rights in that they did not allow him to submit a written

statement and to call witnesses. (Doc. 87). They also failed to follow the guidelines of DR

504 Administration of Discipline. Id. As the motion for summary judgment is fully

briefed, the Court turns to address the merits of the motion.

Plaintiff is an inmate in the Illinois Department of Corrections (“IDOC”) currently

incarcerated at Lawrence Correctional Center. He brings this action pursuant to 42 U.S.C.

§ 1983 for alleged deprivations of his constitutional rights while he was housed at

Pinckneyville Correctional Center (“Pinckneyville”). Plaintiff alleges retaliation related

to his refusal to become an informant, the denial of his due process rights during a

resulting disciplinary hearing, unequal treatment, and civil conspiracy. Plaintiff seeks

monetary damages and injunctive relief.

Plaintiff alleges in his Complaint that in November 2017, he was transferred from

Menard Correctional Center to Pinckneyville. (Doc. 1, p. 11). He was a former member of

the Latin Kings street gang (Security Threat Group or “STG” in prison terminology). After

Plaintiff was transferred to Pinckneyville, he told Defendant Uraski and other prison

officials that he had renounced his membership in the Latin Kings. Id. Uraski and another

Internal Affairs (“IA”) officer told him they were aware of his former affiliation and

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history of filing grievances and that if he continued to file grievances, they would make

his time “miserable.” Id. at p. 12. When asked by Uraski and the IA officer if he would

work for IA providing information on his former gang, Plaintiff refused. Id. Uraski and

the IA officer then began to harass Plaintiff by summoning him to the IA office and having

his cell shaken down more often that non-Hispanic inmates. Id.

On November 12, 2018, Plaintiff was given an investigative disciplinary ticket by

Uraski that was signed off on by Defendants Cleland and Lively; as a result, Plaintiff was

taken to segregation. (Doc. 1, p. 13). Plaintiff was then asked by Uraski whether he had

reconsidered working for IA or “do you like your new cell?” Id. Plaintiff again refused.

On November 13, 2018, Plaintiff was issued a full disciplinary ticket by Uraski,

which was again signed off on by Cleland and Lively. (Doc. 1, p. 13.). Plaintiff was not

given an opportunity to sign the ticket or request witnesses at the subsequent hearing. Id.

Uraski or another officer stopped by his cell each day to threaten him with segregation

until he agreed to work for IA. Id. at p. 14. Plaintiff spoke to Warden Love on November

19, 2018, regarding a missing signature of a hearing investigator, and Love said he would

have someone come and talk to him about it. Id. at p. 14, 15. However, no one came to

talk to Plaintiff before the hearing which took place that same day. Id. at p. 15.

The disciplinary hearing was conducted by Defendants McBride and Myers. (Doc.

1, p. 15). Plaintiff presented several factual defenses, including his renunciation of his

Latin Kings membership. Id. However, the subsequent report only states that he admitted

he was a Latin King member. Id. Plaintiff also requested that questions be asked of the

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confidential informants cited in the disciplinary ticket, but that was refused. Id. at p. 16.

When Plaintiff asked how the Adjustment Board could judge the credibility of the

confidential informants without independent investigation, McBride responded

“[b]ecause Intel said you are guilty.” Id. The Adjustment Board found Plaintiff guilty and

recommended sanctions including one year in segregation and transfer to a “Level One”

prison. Id. at p. 16-17. Defendant Thompson signed off on the report and punishment.

Plaintiff subsequently filed a grievance over the disciplinary charge and hearing

which was reviewed and denied by Mercier, a corrections counselor. (Doc. 1, p. 18).

Thompson again concurred. Id. Plaintiff’s appeal of the grievance denial was in turn

denied in a letter signed by Sarah Johnson from the Administrative Review Board

(“ARB”). Id. at p. 30. The ARB, however, recommended that Plaintiff’s punishment be

reduced to 6 months of segregation, 6 months of C Grade, and 6 months of commissary

restriction. Id.

After conducting a preliminary review pursuant to 28 U.S.C. § 1915A, the Court

allowed Plaintiff to proceed with the following claims:

Count 1: First Amendment claim against Uraski for retaliating against

Plaintiff for refusing to become an informant.

Count 2: Fourteenth Amendment equal protection claim against Uraski

for increased incidents of summoning him to IA and having his cell

shaken down compared to non-Hispanic inmates.

Count 3: Fourteenth Amendment due process claim against Uraski,

Thompson, Cleland, Lively, McBride, and Myers.

Count 4: Civil conspiracy claim against Uraski, Cleland, and Lively.

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(Doc. 15).

On June 8, 2021, the Court held an evidentiary hearing regarding exhaustion of

administrative remedies as to Plaintiff’s claims. (Doc. 53). Two days, later the Court

rendered a decision granting Defendants’ partial motion for summary judgment and

dismissing without prejudice Plaintiff’s claims in Counts 1, 2, and 4 for failure to exhaust

administrative remedies. (Doc. 54). Remaining at this stage of the litigation is Plaintiff’s

Fourteenth Amendment due process claim against the Defendants in Count 3.

II. FACTS

The following facts are taken from the record and presented in the light most

favorable to Plaintiff, the non-moving party, and all reasonable inferences are drawn in

his favor. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009).

At all relevant times, Plaintiff was an inmate incarcerated within the IDOC and

housed at Pinckneyville. Defendant Uraski was employed as a correctional officer in the

INTEL division at Pinckneyville. Defendants Cleland and Lively were employed as

Majors at Pinckneyville. Defendant Thompson was the Warden of Pinckneyville.

Defendants Myers and McBride were members of the Adjustment Committee.

On November 12, 2018, Defendant Uraski issued an investigative ticket with

respect to Plaintiff, which placed him on investigative status for the safety and security

of the institution. (Doc. 85-2, p. 1). That same day, Defendants Cleland and Lively signed

off on the ticket. Id.

The next day, Defendant Uraski issued a disciplinary ticket to Plaintiff for

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Unauthorized Organization Leadership Activity – 111 STG leadership. Again,

Defendants Cleland and Lively signed off on the ticket. Specifically, the ticket stated the

following:

On 11/13/2018 the Investigation Unit completed an inquiry which revealed

inmate ALVAREZ, JESSE R67182 currently holds the rank of INCA for the

LATIN KINGS at Pinckneyville C.C. The Investigations Unit interviewed

multiple confidential informants who shall remain nameless for the safety and

security of the institution and found to be reliable due to the consistency of the

statements provided; stated ALVAREZ has been actively recruiting LATIN

KINGS in an attempt to organize the LATIN KING NATION at Pinckneyville

C.C. C/I’s stated ALVAREZ has already helped organize two housing units

at Pinckneyville C.C. The two housing units are currently abiding by the bi

laws of the LATIN KINGS Security Threat Group. Such Laws as LATIN

KINGS are to travel together and aid and assist of a fellow LATIN KINGS in

an altercation. ALVAREZ is a self-admitted member of the LATIN KINGS

Security Threat Group and self-admitted leader for the LATIN KINGS. The

LATIN KINGS Security Threat Group belongs to the LATIN KING NATION.

Due to the information provided by the C/I’s the Investigations Unit has

issued ALVAREZ, JESSE R67182 for 111 – Security Threat Group or

Unauthorized Organizational Leadership Activity. Inmate Alvarez was

identified by Institutional Graphics and State ID.

(Doc. 85-2, p. 2, 3).

Additionally, the ticket informed Plaintiff of the procedures for the Adjustment

Committee Hearing:

You have the right to appear and present a written or oral statement or

explanation concerning the charges. You may present relevant physical

material such as records or documents.

You may ask that witnesses be interviewed and, if necessary and relevant, they

may be called to testify during your hearing. You may ask that witnesses be

questioned along lines you suggest. You must indicate in advance of the

hearing the witnesses you wish to have interviewed and specify what they

could testify to by filling out the appropriate space on this form, tearing it off,

and returning it to the Adjustment Committee. You may have staff assistance

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if you are unable to prepare a defense. You may request a reasonable extension

of time to prepare for your hearing.

Id. at p. 2. The ticket shows that Plaintiff refused to sign the ticket on November 14, 2018.

Id.

On November 19, 2018, the Adjustment Committee at Pinckneyville held a hearing

on Plaintiff’s November 13, 2018 disciplinary ticket. Defendants Myers and McBride were

the members of the Adjustment Committee that heard the disciplinary ticket. (Doc. 85-3).

They found Plaintiff guilty of STG or Unauthorized Organization. Id. at p. 1. The record

of the proceedings state that Plaintiff did not request witnesses. Id. It further indicated

that the “DR [was] read to inmate. Inmate pled not guilty. Stating, ‘Intel said I hold rank

of INCA: I do not have anything to do with people being together. I am Latin King. To

become INCA they have to be voted in with an election. There was no election. Inca holds

the #1 rank, Conseca holds the #2 rank and the Enforcer holds #3 rank and all have to be

voted in.’” Id.

The basis for the Adjustment Committee was the following:

On 11/13/18, Intel officer Uraski completed an inquiry which revealed inmate

Alvarez, Jesse #R67182 currently holds the position as INCA for the Latin

Kings at Pinckneyville Correctional Center. The Intel Unit interviewed

multiple confidential informants who shall remain nameless for the safety and

security of the institution and deemed reliable due to the consistency of their

statements. Sources stated Alvarez has been actively recruiting Latin Kings in

an attempt to organize Latin Kings Nation at Pinckneyville. The two housing

units are currently abiding by the “bi laws” of the Latin King Security Threat

Group. Such laws are Latin Kings are to travel together and aid and assist of a

fellow Latin King in an altercation. Alvarez is a self-admitted member of the

Latin Kings Security Threat Group. Inmates admission that he does know

about the Latin King elections that have to be held for rank. Confidential

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source statements. Inmate identified by ID card and Institutional Graphics.

Intel contacted and verified statements of confidential sources are true and

accurate.

Note: INMATE ALVAREZ #R67182 HAS PRIOR 205 STG ACTIVITY ON

03/24/15 AND 06/18/16.

(Doc. 85-3, p. 1). The Adjustment Committee recommended that Plaintiff be disciplined

with one year of C Grade; one year of segregation; one year of commissary restriction; six

months of contact visits restriction; and a Level-1 transfer. Id. Defendant Thompson, via

signatory, signed off on the recommendation on November 26, 2018. Id. at p. 2.

Eventually, Plaintiff’s sentence was adjusted to C grade/level reduction reduced

to six months, segregation reduced to six months; and commissary reduced to six months.

(Doc. 85-5, p. 2).

Defendants Uraski, Cleland, Lively, and Thompson did not attend the Adjustment

Committee Hearing.

III. LEGAL STANDARDS

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. See FED. R. CIV. PROC. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ruffin-

Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). Any

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

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party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); Lawrence v. Kenosha Cnty.,

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 h[is] case with

respect to which []he has the burden of proof.” Celotex, 477 U.S. at 323. A party asserting

that a fact is genuinely disputed must support that assertion by citing to materials in the

record or by showing that the materials in the record do not establish the absence of a

genuine dispute. See FED. R. CIV. PROC. 56. If the non-moving party does not show

evidence exists that would reasonably allow a factfinder to decide in its favor on a

material issue, the court must enter summary judgment against the non-moving party.

See Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). The Court’s role

at summary judgment is not to evaluate the weight of evidence, to judge witness

credibility, or to determine the truth of the matter. Instead, the Court is to determine

whether a genuine issue of fact exists. See Nat’l Athletic Sportwear Inc. v. Westfield Ins. Co.,

528 F.3d 508, 512 (7th Cir. 2008).

To establish a Fourteenth Amendment procedural due process claim, Plaintiff

must demonstrate that the state deprived him of a constitutionally protected interest in

“‘life, liberty, or property’ . . . without due process of law.” Zinermon v. Burch, 494 U.S.

113, 125 (1990). A disciplinary ticket, even if falsely issued, does not violate the

Fourteenth Amendment if the inmate receives procedural due process in the disposition

of the ticket. See Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984). Therefore, to

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determine whether a procedural due process violation has occurred, the Court must

inquire into “what process the State provided, and whether it was constitutionally

adequate.” Zinermon, 494 U.S. at 125.

Here, Plaintiff initially was sentenced to one year in disciplinary segregation,

which is sufficient to indicate a protectable liberty interest that triggers procedural due

process safeguards.3 See Marion v. Columbia Correction Inst., 559 F.3d 693, 698 (7th Cir.

2009). Those safeguards include: (1) advanced written notice of the charge against him;

(2) the right to appear before an impartial hearing panel; (3) the right to call witnesses

and present documentary evidence if prison safety allows; and (4) a written statement of

the reasons for the discipline imposed. See Wolff v. McDonnell, 418 U.S. 539, 563-569

(1974). In addition, the disciplinary decision must be supported by “some

evidence.” Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994). That being said, “[e]ven if the

procedures [] are legitimate, it is impermissible to employ those procedures vindictively

or maliciously so as to deny a particular individual due process.” Ciechon v. City of

Chicago, 686 F.2d 511, 517 (7th Cir. 1982). A plaintiff may proceed with a procedural due

process claim if he or she can show “that the decision has already been made and any

hearing would be a sham . . . .” Ryan v. Illinois Dept. of Children & Family Servs., 185 F.3d

751, 762 (7th Cir. 1999).

3 As stated previously, Alvarez’s sentence was reduced to six months segregation. (Doc. 85-5, p. 2).

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“In order to guarantee the inmate’s right to a fair hearing, . . . a prison disciplinary

board must accompany the use of a confidential informant’s testimony with an indication

that the informant is reliable.” Whitford v. Boglino, 63 F.3d 527, 535 (7th Cir. 1995).

“Reliability can be established based on (1) the oath of the investigating officer as to the

truth of his report, (2) corroborating testimony, (3) a statement on the record that the

chairman of the [Adjustment Committee] had firsthand knowledge of the sources and

considered them reliable based on a past record of reliability, or (4) an in camera review

of material documenting the investigator’s assessment of the credibility.” Ashby v. Davis,

No. 02-3007, 82 Fed. Appx. 467, 471 (7th Cir. Oct. 21, 2003)(citing Whitford, 63 F.3d at 535-

536). The findings of the prison disciplinary board must be supported “by some evidence

in the record.” Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472

U.S. 445, 454 (1985). Judicial review determines “whether there is any evidence in the

record that could support the conclusion reached by the disciplinary board.” Id. at 455-

456.

IV. DISCUSSION

Defendants argue that Plaintiff received the required safeguards under Wolff for

the disciplinary hearing. Despite Plaintiff’s assertion of innocence throughout the

proceedings, the Court agrees with Defendants. Based on the record, the Court finds,

after taking the evidence in the light most favorable to Plaintiff, that Plaintiff received all

necessary due process safeguards with respect to the Adjustment Committee hearing.

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There is also evidence that could support the conclusion reached by the disciplinary

board.4 Thus, Defendants are entitled to summary judgment.

Here, Plaintiff received more than 24 hours advance written notice of the charges

against him, as he was served with a copy of the disciplinary report on November 14,

2018. (Doc. 85-2). During the hearing, Plaintiff provided an oral statement on his own

behalf in defense of the charge. (Doc. 85-3). As to not being able to call witnesses at the

hearing, Plaintiff admitted in his deposition that he did not follow the proper procedures

contained on the disciplinary ticket to request witnesses. (Doc. 85-1, p. 42).5 The

4 As the Court finds that Plaintiff was provided due process during his disciplinary hearing, the

Court need not address Defendants arguments regarding personal involvement as to Defendants Uraski,

Cleland, Lively, and Thompson, as well as the qualified immunity argument.

5 Plaintiff testified as to the following:

Question: Okay. So you said that you -- how did you notify the adjustment committee that you

wanted those 6 witnesses called?

Answer: I wrote it on a piece of paper.

Question: Okay.

Answer: And I mailed it to them.

Question: Like a plain sheet of paper?

Answer: Yeah, a plain sheet of paper, sent it out when they pick up mail.

Question: Okay. Did -- so you didn't tear off the bottom of that ticket and write it on there --

Answer: No.

Question: --you wrote it on a different paper?

Answer: No.

Question: Okay. Did you name the five-day officers that you wanted them to call?

Answer: Yeah, I put the five-day officers on there. I can't tell you their names anymore, it's been so

long. But, yeah, it was -- because one of them was trying to get me a porter job to work as a janitor

in a cell house.

…

Question: Okay. Did you -- and -- and tell me how you submitted that to them.

Answer: I just wrote on a blank piece of paper and I addressed it to the adjustment committee and

I stuck 17 it in the door so at nighttime when they collect the mail, I guess they forward it to the

adjustment committee. Like that's the procedure, I guess. You know, like the mail room or whoever

separates the mail sends it to where it needs to be sent.

(Doc. 85-1, p. 42, 43).

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disciplinary ticket report informs Plaintiff of the following procedures: “[y]ou must

indicate in advance of the hearing the witnesses you wish to have interviewed and specify

what they could testify to by filling out the appropriate space on this form, tearing it off,

and returning it to the Adjustment Committee.” (Doc. 85-2, p. 2). Likewise, the

investigative report states: “[d]etach and Return to the Adjustment Committee or

Program Unit Prior to the Hearing.” Id. at p. 1. Plaintiff, however, did not follow this

procedure. Rather, he apparently submitted it to the Adjustment Committee on a

separate piece of paper. The record further contains no evidence that this separate piece

of paper was ever received by the Adjustment Committee.

Although Plaintiff asserted his innocence throughout the proceedings, the Court,

finds that the Adjustment Committee did have evidence before it to support its finding

of guilt and that the Adjustment Committee provided an adequate statement for its

findings. The evidence stemmed from an investigation of the Latin Kings STG leadership

by the Pinckneyville CC Intelligence Unit. This evidence consisted of statements from

multiple confidential informants (at least four), whose names were withheld due to the

safety and security concerns of the institution. (Doc. 85-4). It also included

consistent/corroborating statements amongst the multiple confidential informants about

Plaintiff being the “INCA” for the Lakin Kings, Plaintiff putting Pinckneyville on count,

and Plaintiff having already organized two houses, R3 and R4. Id. The record further

notes that the Adjustment Committee contacted Intel, who in turn verified the statements

of the confidential sources as true and accurate. (Doc. 85-3, p. 1). The consistent and

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corroborative statements amongst the confidential sources and the verification of such

statements are sufficient to satisfy the reliability requirements set forth in Whitford.

Plaintiff was furthermore identified pursuant to Institutional Graphics and State ID. Id.

This evidence is sufficient to support the finding that Plaintiff engaged in unauthorized

gang activity. Although this evidence was contested, it was nevertheless more than

sufficient to impose disciplinary sanctions on Plaintiff. Further, the Adjustment

Committee in its final summary report set forth in detail the basis for its decision. (Doc.

85-3).

Additionally, the Court rejects Plaintiff’s argument that Uraski’s reports

containing the statements from the confidential informants are false. Plaintiff bases this

on the fact that he filed a Freedom of Information Act (“FOIA”) request seeking “incident

reports” for the dates of November 12, 2018, and November 13, 2018, and was told that

“IDOC does not maintain or possess incident reports concerning you for the requested

dates.” (Doc. 87, p. 5). The fact that the FOIA officer did not find the confidential

informants’ reports taken/written by Uraski does not make them false. First, these types

of reports are not “incident reports;” rather, they are investigative interviews of

confidential informants taken during a prison disciplinary investigation. Here, Plaintiff

specifically asked for incident reports. Furthermore, the statements of confidential

informants are generally not produced through a FOIA request. They are also not

generally produced so as to maintain the safety and security of the prison setting. The

dates on these confidential informant’s statements coincide with the dates of the

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disciplinary investigation, the disciplinary ticket, and the Adjustment Committee’s

hearing regarding Plaintiff, and thus, they all lend credence to their veracity. Further, the

record reveals that Plaintiff was given redacted copies of these reports during this

litigation.

Lastly, the Court rejects Plaintiff’s argument that the Defendants violated due

process by not following DR 504. A violation of an Administrative Code or Rule does not

amount to a constitutional violation. See, e.g., White v. Henman, 977 F.2d 292, 295 (7th Cir.

1992)(noting that the violation of an administrative rule is not the same as a violation of

the Constitution). Moreover, 42 U.S.C. § 1983 protects plaintiffs from constitutional

violations, not violations of state statutes, administrative regulations, or prison rules. See

Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003). See also Sobitan v. Glud, 589 F.3d 379,

389 (7th Cir. 2009)(stating that “[b]y definition, federal law, not state law, provides the

source of liability for a claim alleging the deprivation of a federal constitutional right.”).

V. CONCLUSION

Accordingly, the Court GRANTS Defendants’ motion for summary judgment

(Doc. 84). The Court FINDS in favor of Defendants Derek Cleland, Kale Lively, Carol

McBride, Marcus Myers, Christopher (Scott) Thompson, Jon Uraski and Rob Jeffreys, in

his official capacity only, and against Plaintiff Jesse Alvarez. The Court DIRECTS the

Clerk of the Court to enter judgment reflecting the same and to close the case.

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IT IS SO ORDERED.

DATED: March 1, 2023. biribdce Seon

(Oink © <0 Tate: 2023.03.01

13:08:44 -06'00'

GILBERT C. SISON

United States Magistrate Judge

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