Brown v. Hasemyer

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JEREMY BROWN,

Plaintiff,

Case No. 22-cv-01384-SPM

v.

CHAD HASEMYER, et al.,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

Plaintiff Jeramey Brown, an inmate in the custody of the Illinois Department of Corrections

(IDOC), commenced this action pro se for violations of his constitutional rights that occurred while

at Menard Correctional Center. After the Court reviewed the Complaint pursuant to 28 U.S.C. §

1915A, the Court recruited counsel to represent Plaintiff in this matter. Before this Court is a

motion for leave to file an amended complaint filed by court-recruited counsel on behalf of

Plaintiff. (Doc. 54). Plaintiff states that he would like to amend in order to add (1) Defendants

Kyle Williamson and Justin Frazer, previously identified in the Complaint as John Does 1 and 2;

(2) allegations as to the conditions of confinement Plaintiff suffered while housed at the Menard

maximum-security unit; (3) allegations as to the deprivations of Plaintiff’s right to freedom of

speech and due process; and (4) a general reassertion and reframing of Plaintiff’s causes of action

previously asserted. Defendants do not oppose the motion.

MOTION FOR LEAVE TO AMEND

Federal Rule of Civil Procedure 15(a) provides that a party may amend a pleading and that

leave to amend should be freely given “when justice so requires.” The Seventh Circuit maintains

a liberal attitude toward the amendment of pleadings “so that cases may be decided on the merits

and not on the basis of technicalities.” Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1334 (7th Cir.

1977). The Circuit recognizes that “the complaint merely serves to put the defendant on notice and

is to be freely amended or constructively amended as the case develops, as long as amendments

do not unfairly surprise or prejudice the defendant.” Toth v. USX Corp., 883 F.2d 1297, 1298 (7th

Cir. 1989); see also Winger v. Winger, 82 F.3d 140, 144 (7th Cir. 1996).

Plaintiff’s motion is timely filed and will not prejudice Defendants. Thus, the Court

GRANTS the Motion for Leave to Amend Complaint. (Doc. 54). The Amended Complaint,

however, is still subject to review under 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. 28 U.S.C. § 1915A(b).

SECTION 1915A MERIT REVIEW

The facts as alleged in the Amended Complaint are substantially similar to the facts as

summarized by the Court in the previous Merit Review Order. (See Doc. 18). The Court, therefore,

will not restate the allegations here. The Court accepts Plaintiff’s articulations of his claims

(Counts 1-4) as stated in the Amended Complaint. Prior to addressing each count in turn, however,

the Court dismisses all claims against Lieutenant Johnson, Correctional Officer Adams, and

Warden Tiffanie Clark. There are no factual allegations against any of these Defendants describing

their conduct or their involvement in the constitutional deprivations in the Amended Complaint.

See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998) (“A plaintiff cannot state a claim against

a defendant by including the defendant’s name in the caption.”). Accordingly, they will be

terminated as parties to this case.

Counts 1 and 2

Count 1 will proceed against Hasemyer and Count 2 will proceed against Hasemyer,

Armbuster-Huffman, Pitts, Sanders, Spiller, Zang, Schoenbeck, Cheek, Choate, Williamson,

Frazer, Wills, Lawrence, Chambers, and Kilduff for the reasons stated in the previous Merit

Review Order. (Doc. 18).

Count 3

Count 3 will proceed against Hasemyer, Armbuster-Huffman, Pitts, Sanders, Spiller, Zang,

Schoenbeck, Cheek, Choate, Williamson, Frazer, Wills, Lawrence, Chambers, and Kilduff.

Count 3 is dismissed, however, as to John Doe 4, Smith, Jeffreys, Mulholland, Baker,

Pierce, and Jackson. There are no factual allegations against these Defendants in the Amended

Complaint describing their conduct or involvement in any alleged constitutional deprivations.

These individuals cannot be found liable simply because they reviewed, denied, or mishandled

Plaintiff’s grievances or because they held supervisory positions.

Count 3 is also dismissed as to Inmates Voynar, Cole, Coulter, Hoskins, James,

Crutchfield, and Bray. Each inmate is described as “an informant/state agent by Internal Affairs

with the Illinois Department of Corrections.” For a defendant to be liable under Section 1983, he

or she must have deprived the plaintiff of a constitutional right while “acting under the color of

state law.” (Doc. 18, p. 13) (quoting D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793, 798 (7th Cir.

2015)). The Supreme Court has stated that acting under color of state law “requires that the

defendant in a §1983 action have exercised power possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority of state law.” West v. Atkins,

108 U.S. 42, 49 (1988) (internal citations omitted). The designation as “informants” by Internal

Affairs does not confer legal authority over Plaintiff pursuant to state law. See Fleischman v. Matz,

No. 17-cv-1607-dej-pp, 2018 WL 3637541, at *3 (E.D. Wisc. July 31, 2018) (finding that the

plaintiff could not sue fellow inmates where the inmates had no legal authority over the plaintiff).

“Courts have consistently rejected attempts by prisoner plaintiffs to sue fellow inmates under

§1983.” Crane v. Lopez, No. 22-cv-00922-ADA-HBK(PC), 2023 WL 10147656, at *4 (E.D. Cal.

Nov. 20, 2023) (collecting cases). Accordingly, Plaintiff’s allegations are not sufficient to establish

that Voynar, Cole, Coulter, Hoskins, James, Crutchfield, and Bray were state actors when they

took possession of Plaintiff’s property.

Count 4

Plaintiff asserts that he has a protected liberty interest (1) in having his grievances heard

and adjudicated by an unbiased tribunal pursuant to IDOC policies; (2) to not be retaliated against

as a result of his constitutionally protected speech; (3) to not be subjected to atypical and significant

hardships far worse and more restrictive than those he would have experienced at any other prison

in Illinois; and (4) to not have his personal property wrongfully or unlawfully withheld, damaged,

and stolen. By depriving him of these his liberty interests, Defendants violated his procedural and

substantive due process rights. (Doc. 54-1, p. 22-23).

Grievance Procedures

First, Count 4 is dismissed to the extent Plaintiff is claiming that his substantive and

procedural due process rights were violated when his grievances where not heard and adjudicated

by an unbiased tribunal. No independent claim arises under the Fourteenth Amendment Due

Process Clause for the mishandling of grievances. “[A] state’s inmate grievance procedures do not

give rise to a liberty interest protected by the Due Process Clause.” Antonelli v. Sheahan, 81 F.3d

1422, 1430 (7th Cir. 1996). In fact, the “Constitution requires no procedure at all, so the failure of

state prison officials to follow their own procedures does not violate the Constitution. Maust v.

Headley, 959 F.2d 644, 648 (7th Cir. 1992). Furthermore, the Seventh Circuit has specifically

denounced a “Fourteenth Amendment substantive due-process right to an inmate grievance

procedure.” Grieveson v. Anderson, 538 F. 3d 763, 772 (7th Cir. 2008). Accordingly, Plaintiff’s

due process claims are dismissed regarding the review and denial of his grievances.

Deprivation of Property

Next, Count 4 is dismissed to the extent Plaintiff is claiming that he was deprived of his

property without due process of law and that his substantive due process rights were violated by

the confiscation and damage of his property. Illinois provides an adequate post-deprivation remedy

for the loss or damage of property in an action for damages in the Illinois Court of Claims, and the

“Seventh Circuit has closed the door…on any substantive due process claim based on a prisoner’s

confiscation of personal property...” Tatum v. Meisner, 2014 WL 6473481, at *4 (W.D. Wisc. Nov.

18, 2014) (citing Secret v. Brierton, 584 F. 2d 823, 830 (7 Cir. 1978). See also Murdock v.

Washington, 193 F.3d 510, 513 (7th Cir. 1999); Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir.

1993). Thus, Plaintiff has failed to state a due process claim for the damage and confiscation of

his property.

Remaining at Menard Maximum-Security Unit

Plaintiff alleges that Defendants deprived him of procedural and substantive due process

rights by improperly confining him at the Menard maximum-security unit after his disciplinary

report was expunged. He states that he was held under conditions far worse and more restrictive

than those he would have experienced at any other prison in Illinois and was subjected to an

atypical and significant hardships in relation to the ordinary incidents of prison life. Plaintiff

experienced extreme social isolation, severely restricted movement, and an environment that

virtually eliminated all external stimuli. Plaintiff did not have access to programming, such as a

job assignment, educational classes, and limited to no access to “general time.” He was also

exposed to a heightened danger of violence, since the most dangerous offenders are held at the

Menard maximum-security unit. (Doc. 54-1, p. 15).

Plaintiff has failed to state a claim against Defendants for housing him at Menard

maximum-security in violation of the Due Process Clause. “[I]t is well-settled that decisions

regarding whether an inmate belongs in minimum, medium, or maximum security are not

sufficient to create a liberty interest supporting a due process claim.” Williams v. Schultz, No. 22-

cv-2-jdp, 2022 WL 3138903, at *2 (W.D. Wisc. Aug. 5, 2022) (citing Whitford v. Boglino, 63 F.3d

527, 532 (7th Cir. 1995) (“A prisoner has no due process right to be housed in any particular

facility.”)). Furthermore, “the Constitution does not give rise to a liberty interest in avoiding

transfer to more adverse conditions of confinement.” Wilkinson v. Austin, 545 U.S. 209, 221-22

(2005) (citing Meachum v. Fano, 427 U.S. 215, 225 (1976) (no liberty interest arising from Due

Process Clause itself in transfer from low-to maximum-security prison because “[c]onfinement in

any of the State’s institutions is within the normal limits or range of custody which the conviction

has authorized the State to impose”)). See also DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th

Cir.1992) (“prisoners possess neither liberty nor property in their classifications and prison

assignments. States may move their charges to any prison in the system”). Although Plaintiff was

housed in a much more restrictive environment while at Menard maximum-security unit, he has

not sufficiently pled facts from which the Court can plausibly infer that these conditions – social

isolation, restricted movement, and lack of external stimuli – imposed an atypical and significant

hardship on him beyond the struggles of ordinary prison life. See Wagner v. Hanks, 128 F. 3d

1173, 1175 (7th Cir. 1997) (“the courts have held that the transfer of a prisoner from one prison to

another is not actionable as a deprivation of constitutionally protected liberty even if the conditions

of confinement are much more restrictive in the prison to which the prisoner is being transferred”);

Sandin v. Conner, 515 U.S. 472, 483-82 (1995) (a cognizable liberty interest “will be generally

limited to freedom from restraint”). He does not have a liberty or property interest in participating

in certain privileges while incarcerated, such as a work assignment, educational classes, and

general social time. See Zimmerman v. Tribble, 226 F. 3d 568, 571-71 (7th Cir. 2000); Higgason

v. Farley, 83 F.3d 807, 809–10 (7th Cir. 1996) (per curiam); Wallace v. Robinson, 940 F.2d 243,

244 (7th Cir. 1991); Smith v. Shettle, 946 F. 2d 1250, 1252 (7th Cir. 1991). Because Plaintiff has

not pled a significant deprivation of liberty and Plaintiff does not have a liberty interest in being

housed at a certain facility, he has failed to state a due process claim regarding his assignment at

Menard maximum-security unit.

First Amendment Retaliation

Plaintiff alleges that Defendants retaliated against him for exercising his First Amendment

rights by falsifying disciplinary charges that resulted in having him transferred to Menard

maximum-security unit, finding him guilty of the charges and placing him in segregation for thirty

days, and depriving him of and damaging his property.

“A violation of an inmate’s right to substantive due process may occur through the issuance

of unjustified disciplinary charges when such charges were issued in retaliation for the exercise of

a constitutional right.” Kirsch v. Franklin, 897 F. Supp. 1173, 1178 (E.D. Wisc. 1995) (citing

Black v. Lane, 22 F. 3d 1395, 1402 (7th Cir. 1994)). However, “the absence of a protected liberty

interest is fatal to his substantive due process claim.” Id. As discussed above, Plaintiff has not pled

conditions at Menard maximum-security unit that amounted to an atypical and significant

deprivation creating a liberty interest, and he does not have a protected interest in remaining at a

certain correctional facility or in retaining his property. Accordingly, his substantive due process

claim based on retaliatory conduct of Defendants is dismissed.

For these reasons, Plaintiff has failed to state a claim under the Fourteenth Amendment and

Count 4 is dismissed without predjudice.

DISPOSITION

For the reasons stated above, pursuant to Rule 15 and after review of the proposed amended

complaint pursuant to 28 U.S.C. § 1915A, the Court GRANTS the Motion for Leave to File

Amended Complaint. (Doc. 54). Plaintiff is DIRECTED to the file the proposed amended

complaint INSTANTER. After conducting a review of the proposed amended complaint pursuant

to Section 1915A, Plaintiff is proceeding on COUNT 1 against Hasemyer, COUNT 2 against

Hasemyer, Armbuster-Huffman, Pitts, Sanders, Spiller, Zang, Schoenbeck, Cheek, Choate,

Williamson, Frazer, Wills, Lawrence, Chambers, and Kilduff, and COUNT 3 against Hasemyer,

Armbuster-Huffman, Pitts, Sanders, Spiller, Zang, Schoenbeck, Cheek, Choate, Williamson,

Frazer, Wills, Lawrence, Chambers, and Kilduff. COUNT 4 is DISMISSED without prejudice.

All claims against Johnson, Adams, Clark, John Doe 4, Smith, Jeffreys, Mulholland, Baker,

Pierce, Jackson, Voynar, Cole, Coulter, Hoskins, James, Crutchfield, and Bray are DISMISSED

without prejudice. The Clerk of Court is DIRECTED to terminate them as parties on the docket.

In light of this Order and the filing of an Amended Complaint naming Defendants Frazer

and Williamson as defendants, the Motion to Substitute is DENIED as moot. (Doc. 53). The Clerk

of Court is DIRECTED to serve process on Frazer and Williamson in accordance with the Merit

Review Order at Doc. 18.

All Defendants are ORDERED to timely file an appropriate responsive pleading to the

Amended Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).

Newly added Defendants shall follow the deadlines as stated in the Initial Scheduling and

Discovery Order regarding discovery and motion for summary judgment on exhaustion deadlines.

(See Doc. 37).

The Motions for Extension of Time are GRANTED. (Doc. 55, 56). A motion for summary

judgment for failure to exhaust administrative remedies is due by Defendants Zang, Wills, Spiller,

Schoenbeck, Pitts, Lawrence, Hasemeyer, Choate, Chambers, Armbruster-Huffman, Cheek, and

Kilduff on or before June 7, 2024.

IT IS SO ORDERED.

DATED: April 9, 2024

s/Stephen P. McGlynn

STEPHEN P. MCGLYNN

United States District Judge