# Rainey v. Wills

> District Court, S.D. Illinois · May 19, 2023

URL: https://www.frixlaw.com/law-library/cases/10156384

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** May 19, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10156384

## How later opinions describe it (automated extraction)

- finding that 78 days in alleged deplorable conditions was not a “atypical and significant hardship” as compared to prison life generally

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

TEVIN D. RAINEY, )
)
Plaintiff, )
)
vs. ) Case No. 22-cv-2073-RJD
)
)
ANTHONY D. WILLS, JUSTIN D. )
KULICH, JOSHUAA SCHOENBECK, )
and ANTHONY B. JONES, )
)
Defendants. )

MEMORANDUM AND ORDER
DALY, Magistrate Judge:
Plaintiff Tevin D. Rainey, an inmate of the Illinois Department of Corrections
(“IDOC”) who is currently incarcerated at Menard Correctional Center, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. In the Amended
Complaint,1 Rainey alleges Defendants violated his due process rights in a disciplinary
hearing. He asserts claims against the defendants under the Fourteenth Amendment.
This case is now before the Court for preliminary review of the Amended
Complaint pursuant to 28 U.S.C. § 1915A.2 Under Section 1915A, the Court is required

1 On September 2, 2022, Rainey filed his Complaint (Doc. 1). Subsequently, on September 26, 2022,
Rainey filed his Amended Complaint which the Court considers the operative pleading.
2 The Court has jurisdiction to screen the Amended Complaint in light of Plaintiff’s consent to the
full jurisdiction of a Magistrate Judge, and the limited consent by the Illinois Department of
Corrections to the exercise of Magistrate Judge jurisdiction as set forth in the Memorandum of
Understanding between this Court and the Illinois Department of Corrections.
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).

The Amended Complaint
In his Amended Complaint, Rainey makes the following allegations: On February
14, 2022, Rainey was placed in segregation based on a disciplinary report for drugs and

drug paraphernalia (Doc. 7, p. 7). Justin D. Kulich, an internal affairs officer, issued the
disciplinary report alleging that two half sheets of white paper were found during a
routine cell search (Id. at p. 8). The papers were found under Rainey’s mattress and were
discolored and textured with typed text. Also under his mattress, a single tea bag and a
piece of “bible” paper were located (Id.). The paper was tested with a field test kit which

tested positive for synthetic cannabinoids (Id.).
On February 22, 2022, Rainey appeared before the adjustment committee, which
consisted of chairperson Joshuaa Schoenbeck and Anthony Jones, and pled not guilty
(Id.). Rainey maintained that the test kit was faulty and requested that the paper be sent
to the lab for testing (Id. at p. 9). Instead, the committee accepted Kulich’s report as factual

and found Rainey guilty. Warden Anthony Wills concurred with the findings (Id.).
On March 23, 2022, Rainey submitted a grievance asserting his innocence and
requesting that the sheets of paper be tested for synthetic cannabinoids (Id. at p. 9). His
counselor informed him that the papers were sent to the Illinois State Police (“ISP”) Crime
Laboratory for testing (Id.). On April 26, 2022, the grievance officer reviewed the
grievance and informed Rainey that his disciplinary report was expunged on April 5,

2022 and the report dismissed because the ISP lab report found no substances on the
paper (Id. at p. 10).
Rainey alleges that his due process rights were violated because he was placed in
segregation while lab results from the ISP were still pending (Id. at p. 11). He alleges he
was not provided with written notice of the allegations or a written statement of the
decision, and was denied the right to call witnesses, help preparing for the hearing, and

a fair and impartial decisionmaker (Id.). At the hearing, although he requested that the
papers be sent for testing, which would have helped him prepare for his defense, he was
denied the request for assistance or a witness from the ISP (Id. at pp. 11-12).
While in segregation, Rainey alleges that he was subjected to second-hand smoke,
use of mace, excessive noise, sleep deprivation, the water being turned off, and an

unsanitary cell and living unit including dust, improper ventilation, feces on the walls
and floors, roaches, ants, flies, gnats, and spiders (Id. at p. 13). He lacked access to showers
and had no access to cleaning supplies (Id.).

Discussion

Based on the allegations in the Amended Complaint, the Court designates the
following count:
Count 1: Fourteenth Amendment due process claim against Anthony
Wills, Justin D. Kulich, Joshuaa Schoenbeck, and Anthony
B. Jones.
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 Amended Complaint but not addressed in this Order should be
considered dismissed without prejudice as inadequately pled under the Twombly
pleading standard.3

“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).
When an inmate raises a procedural due process claim, the Court undertakes a two-part
analysis. Id. The Court first evaluates whether the prisoner was deprived of a protected
liberty interest, and then second, evaluates whether the process he was afforded was

constitutionally deficient. Id. (citing Hess v. Bd. of Trs. of S. Ill. Univ., 839 F.3d 668, 673 (7th
Cir. 2016)).
Rainey alleges that Defendants violated his due process rights when they
sentenced him to segregation without being provided written notice of his violation and
denied him the right to call witnesses, assistance in preparing for the hearing, a written

statement setting forth the reasons for the guilty finding, and an impartial decisionmaker.
Due process safeguards that are associated with prison disciplinary hearings include: (1)
advance written notice of the charges; (2) the opportunity to appear before an impartial

3 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”).
hearing body to contest the charges; (3) the opportunity to call witnesses and present
documentary evidence as a defense (if prison safety allows and subject to the discretion

of correctional officers); and (4) a written statement summarizing the reasons for the
discipline imposed. See 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). Rainey alleges that he requested testing on the
paper found in his cell and a witness from the Illinois State Police, but his requests were
denied (Doc. 7, p. 12). He also alleges that the officials were not impartial as they relied

solely on the statements of Kulich and did not wait for results from the lab (Id.).
But even if an inmate's due process rights are violated, as Rainey alleges here, he
still may not have a Fourteenth Amendment claim. An inmate’s liberty interests are
protected by the Due Process Clause only insofar as a deprivation of the interest at issue
would impose an “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). Rainey alleges
that he was in segregation from the date the ticket was issued, February 14, 2022, until
the ticket was expunged on April 5, 2022. This amounted to just short of two months in
segregation. In assessing whether disciplinary segregation amounts to a constitutional
violation, a court must examine the length of a prisoner's confinement in segregation in

combination with the conditions he endured there. Kervin v. Barnes, 787 F.3d 833, 836-37
(7th Cir. 2015); Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013). Relatively short
stints in segregation do not, on their own, amount to a deprivation of a liberty interest.
Thomas v. Ramos, 130 F.3d 754, 761 (7th Cir. 1997) (70 days not enough on its own). The
Seventh Circuit has noted that a segregation stint of only thirty days is not enough to
invoke due process protections. See Williams v. Brown, 849 F. App'x 154, 157 (7th Cir.

2021) (citing Marion v. Columbia Corr. Inst., 559 F.3d 693, 697-98 nn. 2-3 (7th Cir. 2009)
(collecting cases on the length and duration of segregation that invokes a liberty interest)).
Rainey remained in segregation for approximately fifty days according to
allegations in his Amended Complaint, less than two months. Such a relatively short stint
in segregation does not usually invoke due process protections. See Marion, 559 F.3d at
697-98 n. 2 (noting that up to 90 days in segregation relatively short depending on the

conditions); McCoy v. Atherton, 818 F. App’x 538, 541-42 (7th Cir. 2020) (3 months in
segregation in a dirty cell near physically and mentally ill inmates not enough to
implicate due process protections); Obriecht v. Raemisch, 565 F. App’x 535, 540 (7th Cir.
2014) (finding that 78 days in alleged deplorable conditions was not a “atypical and
significant hardship” as compared to prison life generally).

Rainey’s stint in segregation is most analogous to the situation in McCoy. In McCoy,
the plaintiff spent three months in administrative segregation, housed on the medical
floor in allegedly dangerous and unsanitary conditions. The plaintiff alleged that the cell
was dirty with dried urine and soap scum, and he was not provided with any cleaning
supplies. McCoy, 818 F. App’x at 540. The plaintiff feared being affected by airborne

viruses and was housed with potentially violent, mentally ill inmates. Id. The Seventh
Circuit found that the relatively short time in segregation, in a dirty cell, near physically
and mentally-ill individuals was not atypical and significant and did not implicate a
liberty interest. Id. at 541-42 (collecting cases). Here, Rainey alleges that in segregation he
was subjected to second-hand smoke, smoke from inmates setting fires, and mace (Doc.
7, p. 13). He was subjected to excessive noise, sleep deprivation, the flow of water being

turned off on numerous occasions, and unsanitary cells with dust, insects, and feces (Id.).
He lacked access to the showers and outside recreational time (Id.). Although Rainey
alleges he was housed in unsanitary conditions, his stay in segregation was extremely
short, amounting to less than two months. He also fails to provide any specifics as to
many of the alleged conditions, including: how many times he received a shower while
in segregation, how often he was subjected to mace during his stay, the numbers of fires

set by inmates during his stay, and the length of time he went without running water.
Like in McCoy, the Court finds that this relatively short period of time in segregation,
without something egregious in terms of the conditions alleged, fails to trigger due
process protections. See also Obriecht, 565 F. App’x at 540 (78 days in segregation in
“deplorable” conditions not enough to trigger due process protections).

Rainey’s allegations may possibly state a deliberate indifference claim for his time
in segregation but there are no factual allegations indicating knowledge of the conditions
he faced by any of the named defendants. See Obriecht, 565 F. App’x at 540 (Although
plaintiff did not state a due process claim, he “might have challenged the conditions in
segregation under the Eighth Amendment, just as inmates in the general population may

challenge the conditions of their confinement.”). And Rainey’s Amended Complaint
clearly only raised a due process claim. As Rainey’s allegations do not implicate due
process protections, the Court DISMISSES the Amended Complaint. To the extent that
Rainey may be able to raise an Eighth Amendment deliberate indifference claim or
further develop a due process claim, the Court GRANTS Rainey leave to file an
Amended Complaint.

Pending Motions
As to Rainey’s motions for counsel (Docs. 3 and 9), he states that he has sent letters
to multiple law firms and he is not familiar with civil laws and federal procedures. Given
the early stage of the litigation, however, it is difficult to accurately evaluate the need for
the assistance of counsel. See Kadamovas v. Stevens, 706 F.3d 843, 845 (7th Cir. 2013)
(“[U]ntil the defendants respond to the complaint, the plaintiff’s need for assistance of

counsel ... cannot be gauged.”).4 Further, the Court finds that Rainey is capable of drafting
an Amended Complaint on his own. Thus, counsel is not needed at this time and his
motions are DENIED.
As to Rainey’s motion for leave to proceed in forma pauperis (Doc. 8), that motion
is DENIED as moot. Rainey has already been granted leave to proceed in forma pauperis

(Doc. 6). His motion for status (Doc. 17) is also moot.

Disposition
For the reasons stated above, Rainey’s Amended Complaint is DISMISSED
without prejudice for failure to state a claim.

4 In evaluating the motion for counsel, the Court applies the factors discussed in Pruitt v. Mote,
503 F.3d 647, 654 (7th Cir. 2007), and related authority.
Rainey is GRANTED leave to file a “Second Amended Complaint” on or before
June 16, 2023. Should Rainey 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. App. 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). The
dismissal shall count as one of Rainey’s three allotted “strikes” under 28 U.S.C. § 1915(g).
An amended complaint supersedes and replaces the original complaint, rendering

the original complaint 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 Rainey 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.
Rainey 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 Rainey 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, Rainey 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: 5/19/2023

/s/ Reona J. Daly
REONA J. DALY
U.S. Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10156384. Public record. Not legal advice.