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UNITED STATES DISTRICT COURT
THOMAS SEGRETI,
Plaintiff,
v.
Supervisor ARTHUR GILLEN, et al.,
Defendants.
No. 01 C 7879
May 1, 2003, Decided
May 5, 2003, Docketed
MEMORANDUM OPINION AND ORDER
Plaintiff
Thomas Segreti, formerly a prisoner in the custody of the Illinois Department
of Corrections, has brought a two count, second amended complaint against
Defendants Supervisor Arthur Gillen and Correctional Officers Edward and
Crisler, pursuant to the 4th, 5th, and 14th Amendments of the U.S. Constitution
and 42 U.S.C. § 1983. In Count I, plaintiff seeks compensatory and punitive
damages, based on an alleged retaliatory transfer. Count II seeks compensatory
and punitive damages, based on an alleged deprivation of a "synthetic
liberty interest" in violation of the Due Process Clause of the 14th
Amendment.
Defendants move to dismiss
Count I for failure to state a claim, claiming plaintiff has not alleged the
necessary chronology of events for a retaliatory transfer claim. Defendants
further move to dismiss Count I against defendant Gillen, claiming he was not
personally involved in the retaliation, and move to dismiss against all
defendants, asserting they are protected as State employees under qualified
immunity.
Defendants
also move to dismiss Count II, alleging that plaintiff does not have a property interest in not being
transferred to another prison or in maintaining eligibility for a work-release
program. Defendants have further moved to dismiss both Counts I and II,
asserting that plaintiff did not serve defendants a summons for his original
complaint within 120 days as required by Fed. R. Civ. P. 4. For the reasons
stated below, defendants' motion is denied.
Background
Prior to
June 29, 2001, plaintiff was convicted of a criminal offense and sentenced to
incarceration in the custody of IDOC. Beginning on or before June 29, 2001,
plaintiff was placed in the work-release program, which allowed him to engage
in "outside employment." On June 29 and June 30, plaintiff reported
to his work at City Automotive Group and returned to the Transition Center, in
accordance [*735] with the procedures of the work-release program. On July 2,
2001, plaintiff left for work, and when he returned to the Transition Center,
he was confronted by Defendant Gillen who "falsely" advised plaintiff
that his movement off the Center was not approved. According to plaintiff,
Gillen became "agitated and verbally abusive" when plaintiff
attempted to explain that he had been following proper procedure.
On July 3,
2001, plaintiff prepared a written grievance against Gillen, describing the
confrontation from the previous evening. Plaintiff submitted the grievance to
his counselor, Ms. George. After submitting this grievance, Gillen filed an
Inmate Disciplinary Report ("I.D.R.") against plaintiff in which he
was charged with violating the Illinois Administrative Code, specifically
"Giving False Information to an Employee," "Insolence," and
"Unauthorized Movement." Plaintiff claims that Gillen filed these
charges even though he knew them to be false.
In response
to the grievance, an Adjustment Committee Hearing was held by defendants
Emerson and Crisler on July 5, 2001. Gillen was allowed to participate in the
deliberations of the hearing and dictated its result. On the same date,
plaintiff was transferred out of the Transition Center and sent to Joliet
Correctional Center.
Standard for Motions to Dismiss
A complaint should not be dismissed for failure to state a
claim pursuant to Fed. R. Civ. P. 12(b)(6) unless "it appears beyond doubt
that plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Hartford
Fire Insurance Co. v. California, 509 U.S. 764, 113 S. Ct. 2891, 2917, 125 L.
Ed. 2d 612 (1993). The court accepts as true all of the
plaintiff's well pled factual allegations, and gives the plaintiff the benefit
of every reasonable inference that it may draw from these facts. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.
Ct. 1683, 40 L. Ed. 2d 90 (1979); Powe v. City of Chicago, 664 F.2d 639, 642
(7th Cir. 1981).
Discussion
Defendants move to dismiss all counts generally, based on
alleged procedural flaws. Defendants claim that plaintiff did not serve them
timely with the original complaint and summons, and also that plaintiff failed
to comply with the court's December 3, 2001, order granting plaintiff sixty
days to file a second amended complaint.
Plaintiff filed his original complaint pro se on October 11,
2001. Plaintiff did not serve this original complaint on defendants. On
December 3, 2001, this court granted leave for plaintiff to file a second amended
complaint within sixty days, and appointed counsel who subsequently sought
relief from his appointment on January 10, 2002. That request was granted on
February 25, 2002, and the court appointed substitute counsel. That appointed
counsel, however, was granted leave to withdraw on March 20, 2002. Then on
March 25, 2002, Paul E. Wojcicki was appointed as plaintiffs counsel. On July
11, 2002, this court granted leave for plaintiff to file his second amended
complaint. Plaintiff then served the second amended complaint and summons
within the 120 day requirement of Fed. R. Civ. P. 4, and defendants waived
service.
This court granted plaintiff's July 11, 2002, motion to file a
second amended complaint because plaintiff had been involved with a series of
different court appointed counsel. Fed. R. Civ. P. 4(m) provides that "if the plaintiff shows good cause for the
failure, the court shall extend the time for service for an appropriate
period." Fed. Rule Civ. Pro. 4(m). This court granted its July 11, 2002,
order pursuant [*736] to this rule. Plaintiff then complied with that order and
served defendants within the 120 day service period. Further, defendants then
waived service. Because plaintiff complied with this court's order, and then
served defendants in a timely manner from that point, defendants' motion to
dismiss all counts based on untimely service is denied.
Count I
Defendants
move to dismiss Count I, claiming that plaintiff has not alleged the requisite
chronology of events to support a claim of retaliatory transfer. To state a
retaliatory transfer claim, plaintiff must set forth a chronology of events
from which retaliation may be inferred. Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987). Plaintiff
alleges that he returned from work on July 3, 2001, and was confronted by
Gillen. Plaintiff then filed a grievance against Gillen. The following day,
Gillen filed an I.D.R. against plaintiff, even though, according to plaintiff,
Gillen knew those allegations were false. Plaintiff claims that he was not
guilty of the violations charged, and followed all of the proper procedures
regarding his work-release enrollment. A hearing regarding the I.D.R. was held
the following day, in which Gillen participated and dictated the result.
Plaintiff was subsequently taken off work-release and transferred to the Joliet
facility. Therefore, accepting plaintiff's well-pled allegations as true,
plaintiff has alleged a chronology, or sequence of events, which could support
a claim of retaliation. Plaintiff claims that Gillen filed the I.D.R. solely to
retaliate for plaintiff's having filed the grievance against him.
Further, plaintiffs are under no obligation to prove
motivation at this pleading stage. Because of the difficulty of proving intent
at the time of a complaint, it is sufficient for plaintiff to allege a sequence
of events that supports an inference of retaliation. Id. at 108; Benson v.
Cady, 761 F.2d 335, 342 (7th Cir. 1985). Therefore, defendants' motion to
dismiss Count I based on failure to allege a sufficient sequence of events to
support a retaliatory transfer claim is denied.
Defendants further move to dismiss Count I against defendant
Gillen because he was not personally involved with the alleged violation under
the retaliation claim. For a § 1983
claim, a defendant is personally involved in the violation if he "acted or failed to act with a deliberate or
reckless disregard of plaintiff's constitutional rights, or if the conduct
causing the constitutional deprivation occurred at [the defendant's] direction
or with [the defendant's] knowledge and consent." Smith v. Rowe, 761 F.2d 360, 369 (7th Cir.
1985).
Plaintiff alleges that Gillen was responsible for the
retaliation from its inception. Gillen was the supervisor who confronted
plaintiff, and against whom plaintiff filed a grievance. Then, allegedly in
response, Gillen filed an I.D.R. against plaintiff and participated in the
hearing which eventually led to plaintiff's transfer. Assuming at this stage of
the litigation that all of plaintiff's well-pled allegations are true,
defendant Gillen was personally involved in the retaliation, and thus any
deprivation of a plaintiff's rights would have been with Gillen's consent.
Therefore, defendants' motion to dismiss Count I against defendant Gillen is
denied.
Defendants also claim that plaintiff has failed to describe how
the grievance motivated defendants Emerson and Crisler in making their
decision. Again, plaintiff is not required to prove motivation at the pleading
stage. Murphy, 833 F.2d at 108.
Plaintiff has alleged that Emerson and Crisler not only allowed Gillen to
participate in the hearing in violation of § 504.80 of the Illinois
Administrative Code, but also allowed him to dictate the result, in essence
conducting a "sham" hearing. [*737] Giving plaintiff the benefit of
every reasonable inference, this alleged conduct is sufficient participation in
the sequence of events leading to the alleged retaliation.
Finally,
defendants move to dismiss Count I, alleging that qualified immunity protects
the State employees. When determining whether a State employee is protected by
qualified immunity, the court must determine whether the plaintiff has alleged
a constitutional deprivation, and then ask whether the constitutional right was
clearly established at the time of the violation. Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 1999). Plaintiff
claims he was transferred out of the work-release program as a form of
retaliation for filing a grievance against Gillen. In this situation, plaintiff
alleges he has been retaliated against after asserting his First Amendment
right to free speech.
Plaintiff
was exercising his First Amendment right to free speech both when he complained
to Gillen and when he filed a formal grievance against him. Newsome v. Godinez, 2002 U.S. Dist. Lexis
5401, 2002 WL 485035 (N.D. Ill. March 28, 2002) at *2. The constitutional right
to free speech was clearly established at the time of this incident. Further,
it has long been clearly established that violating one's First Amendment
rights through retaliatory transfer is a violation of § 1983. 2002 WL 485035 at *10; Babcock v. White, 102 F.3d 267, 275 (7th Cir.
1996); Buise v. Hudkins, 584 F.2d 223,
229 (7th Cir. 1978). Therefore, because plaintiff has alleged a constitutional
violation, and that constitutional right was clearly established at the time of
the violation, defendants' motion to dismiss Count I based on qualified
immunity is denied.
Because
plaintiff has alleged a sufficient sequence of events to support a claim of
retaliation, defendant Gillen was personally involved in the alleged
retaliation, and defendants are not entitled to qualified immunity, defendants'
motion to dismiss Count I is denied.
Count II
Defendants
move to dismiss Count II, asserting that plaintiff has no property interest in
remaining in the work-release program, or from being transferred from one
facility to another, and therefore cannot establish a claim for any violation
of due process, An inmate in prison has a property interest only in not having
the length of his or her sentence changed. Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418
(1995). The inmate does not have a property interest in not being transferred from
one program or prison to another. Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th Cir. 1996).
In this case, there was no change in the duration of plaintiff's
sentence. Instead, plaintiff claims he has a "synthetic liberty
interest" in not being removed from the work release program. In Montgomery v. Anderson, 262 F.3d 641, 644
(7th Cir. 2001), the Seventh Circuit
held that an inmate has a statutory liberty interest in good-time credits and
parole once they have been awarded pursuant to state or administrative
regulations. Each prisoner is then entitled to remain in the class or
designation that they have been assigned to, unless he or she commits a
violation, because of the significant hardship such a reduction would impose
upon the prisoner. Id. at 645. The
prisoner must thus be afforded due process before a reduction due to a rule
violation can take place. Meeks v.
McBride, 81 F.3d 717, 719 (7th Cir. 1996).
Work-release,
which allows the inmate to participate in employment outside the penal
institution, is analogous to parole. Both work-release and parole allow a
measure of restricted, supervised liberty during the period otherwise
encompassed by the inmate's sentence. An inmate's [*738] removal from
work-release thus results in an "atypical and significant hardship [upon
an inmate] in relation to the ordinary incidents of prison life." Roucchio v. Coughlin, 923 F. Supp. 360,
374-75 (E.D.N.Y. 1996). See also Quartararo v. Catterson, 917 F. Supp. 919, 940 (E.D.N.Y. 1996)
(holding that there is an "atypical, significant hardship" placed
upon the inmate when his earned participation in a work-release program, and
thus his ability to secure gainful employment, is terminated). Therefore, the inmate has a
statutory liberty interest in participation in the work-release program, once
it has been awarded pursuant to 20 Ill.Adm.Code 504, which cannot be terminated
without due process. Id. Defendants' motion to dismiss Count II based on
plaintiff's lack of a property interest in remaining in work-release program is
therefore denied.
CONCLUSION
For the
foregoing reasons the court: (1) denies defendants' motion to dismiss all
counts based on untimely service; (2) denies defendants' motion to dismiss
Count I for failure to state a claim, lack of personal involvement on the part
of Gillen, and protection of defendants under qualified immunity; and (3)
denies defendants' motion to dismiss Count II based on the lack of a property
interest in remaining in the work-release program. Defendants are ordered to
file an answer to the second amended complaint on or before May 20, 2003. This
case remains set for a report on status May 22, 2003, at 9:00 a.m.
ENTER: May 1, 2003
Robert W. Gettleman
United States District Judge