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Hoskins, Robert v. Lenear, Connie, 03-4190 (2005)

Court: Court of Appeals for the Seventh Circuit Number: 03-4190 Visitors: 13
Judges: Per Curiam
Filed: Jan. 07, 2005
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 03-4190 ROBERT HOSKINS, Plaintiff-Appellant, v. CONNIE LENEAR, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 03 C 50412—Philip G. Reinhard, Judge. _ SUBMITTED NOVEMBER 30, 2004—DECIDED JANUARY 7, 2005 _ Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges. PER CURIAM. Robert Hoskins, an Illinois prisoner, brought suit under 42 U.S.C. § 1983
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                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-4190
ROBERT HOSKINS,
                                              Plaintiff-Appellant,
                                v.


CONNIE LENEAR, et al.,
                                           Defendants-Appellees.

                         ____________
         Appeal from the United States District Court for
        the Northern District of Illinois, Western Division.
          No. 03 C 50412—Philip G. Reinhard, Judge.
                         ____________
  SUBMITTED NOVEMBER 30, 2004—DECIDED JANUARY 7, 2005
                         ____________



  Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
  PER CURIAM. Robert Hoskins, an Illinois prisoner,
brought suit under 42 U.S.C. § 1983 alleging that prison
staff retaliated when he exercised his right to use the pris-
on’s grievance system. The district court dismissed the suit
under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a
claim. We affirm in part and vacate and remand in part.
  The facts according to Hoskins, which we accept as true,
are as follows. See DeWalt v. Carter, 
224 F.3d 607
, 611-12
(7th Cir. 2000). On January 17, 2003, Hoskins was working
his job in the cafeteria at Dixon Correctional Center when
Officer Connie Lenear, the food services supervisor, called
2                                                No. 03-4190

him a racial epithet because he could not help her locate
cartons of chocolate milk. Hoskins immediately reported the
incident to Lenear’s supervisor and was told that he should
file a grievance, which he did that same day.
  Three days later, on January 20, Hoskins was talking to
another inmate when Lenear approached him. Hoskins told
Officer Lenear that he was not speaking to her. Shortly
thereafter, a different inmate reported to Hoskins that
Lenear had said she intended to get Hoskins transferred out
of Dixon. The inmate also said he had overheard Captain
Schott, a shift supervisor, tell Lenear that she should write
up a disciplinary ticket and he would take care of Hoskins.
Lenear in fact wrote up a disciplinary ticket for “insolence”
that day. That evening, on Schott’s instructions, Hoskins
was placed on “investigative status” and taken to segrega-
tion.
   The next day, January 21, Hoskins lodged grievances
concerning both Officer Lenear and Captain Schott. These
grievances alleged that Lenear had falsified the disciplinary
ticket for insolence to retaliate for the grievance Hoskins had
filed against her on January 17, and that Schott had
worked with Lenear to engineer his placement in segrega-
tion, again to retaliate for the January 17 grievance.
  Hoskins was found guilty of the insolence charge on
January 28 and, as punishment, lost his work assignment
in the cafeteria. Although he was not ordered to serve a
term in segregation, he nonetheless remained there on in-
vestigative status. On February 11 he was visited there by
Internal Affairs Officer Robert Bock, who told Hoskins that
he did not know “what exactly he was investigating,” and
that he only knew that Hoskins and Officer Lenear were “not
getting along.” Then on February 17 Hoskins was visited by
Captain Schott, who promised to “make things go away” if
Hoskins would do the same. When Hoskins answered that
he would not drop the grievances against either Schott or
No. 03-4190                                                  3

Lenear, Schott responded that he would have Bock “write
up” a disciplinary case that would get Hoskins “sent out of
the prison.”
  The day after Captain Schott’s visit, Hoskins received a
disciplinary report, written by Bock and dated that same
day, charging him with making “possible verbal threats to-
wards staff.” According to this report, informants had reported
to Bock that they witnessed Hoskins make “an inference
of physical harm” toward Lenear. Bock’s report does not
identify what Hoskins purportedly said, but based on the
report an adjustment committee found Hoskins guilty on
February 24 and sanctioned him with a demotion to C-grade
(a loss in privileges), two months in segregation, and a rec-
ommendation for a transfer. Hoskins was then transferred
to Lawrence Correctional Center.
  After his transfer, Hoskins continued to challenge his dis-
ciplinary conviction for threatening Officer Lenear. On June
30, 2003, the Administrative Review Board concluded that
the conviction was not substantiated by the record and
remanded the case to the warden of Dixon “to have the
report rewritten to substantiate the charges.” The Board
directed the warden to timely forward the revised report to
the warden at Lawrence, where Hoskins was confined, to be
reheard. In mid-August, after hearing nothing more,
Hoskins wrote the Board, arguing that the warden at Dixon
had not acted in a timely manner and should not be given
more time. The Board agreed, and on September 10 directed
that Hoskins’ conviction be expunged, and that the reduc-
tion in status and two months in segregation be reversed.
The Board, however, did not order Hoskins transferred back
to Dixon.
  Hoskins thereafter sued Officer Lenear, Captain Schott,
Officer Bock, the members of the adjustment committee
that found him guilty of threatening Lenear, and the
warden at Dixon. The district court, construing Hoskins’
4                                                 No. 03-4190

claim as one that he was denied due process when he was
disciplined in retaliation for the grievances he filed against
Lenear and Schott, dismissed the complaint prior to service
for failure to state a claim. The court, although recognizing
that Hoskins was not returned to Dixon, reasoned that he
received all the process that was due through his admin-
istrative appeals because the ill effects of the retaliation
were cured when the other punishments were overturned.
The court also went on to conclude that Hoskins had not al-
leged a liberty interest sufficient to implicate due process.
We review that decision de novo. Zimmerman v. Tribble,
226 F.3d 568
, 571 (7th Cir. 2000).
   To the extent that Hoskins claims he was denied due pro-
cess based on these events, we agree with the district court
that his complaint fails to state a claim. We need not focus
on Hoskins’ success in his administrative appeals because,
as the district court observed, the disciplinary case, even if
it was fabricated, implicated no federally protected liberty
interest. The punishments Hoskins suffered because of his
disciplinary conviction (demotion in status, segregation, and
transfer) raise no due process concerns. See Sandin v.
Conner, 
515 U.S. 472
, 486 (1995) (disciplinary segregation);
Thomas v. Ramos, 
130 F.3d 754
, 761-62 & n.8 (7th Cir.
1997) (temporary segregation and demotion to C-grade
status); Cochran v. Buss, 
381 F.3d 637
, 641 (7th Cir. 2004)
(transfer).
  However, we disagree with the district court’s analysis of
Hoskins’ retaliation claim. In our view, due process and
retaliation claims are analyzed differently. Conduct that
does not independently violate the Constitution can form
the basis for a retaliation claim, if that conduct is done with
an improper, retaliatory motive. Babcock v. White, 
102 F.3d 267
, 275 (7th Cir. 1996). In Babcock, a prisoner alleged that
officers retaliated against him for exercising his right to file
a grievance. In that case, we recognized that the retaliatory
action complained of by the prisoner (placement in adminis-
No. 03-4190                                                   5

trative detention) did not amount to a protectable liberty
interest. However, we held that a prisoner may still main-
tain a retaliation claim even when the retaliatory actions do
not independently violate the Constitution. 
Babcock, 102 F.3d at 275
.
  Prisoners are entitled to utilize available grievance proce-
dures without threat of recrimination, Walker v. Thompson,
288 F.3d 1005
, 1009 (7th Cir. 2002), and to state a claim,
Hoskins was required only to allege enough to put the de-
fendants on notice and enable them to file an answer. Higgs
v. Carver, 
286 F.3d 437
, 439 (7th Cir. 2002). Hoskins’ al-
legations against Officer Lenear, Captain Schott, and Officer
Bock specified a retaliatory action (filing a false disciplinary
report), named them as defendants, and asserted a consti-
tutionally protected activity, the exercise of which caused
the officers’ retaliatory action (his grievance against Lenear).
Hoskins’ complaint is therefore sufficient to state a retali-
ation claim. 
Higgs, 286 F.3d at 439
. If believed, Hoskins’
claim that Lenear, Schott, and Bock filed and pursued a
false disciplinary case on account of his grievances against
Lenear and Schott would entitle him to damages. 
Babcock, 102 F.3d at 275
.
  We note though, that Hoskins states a retaliation claim
only as against these three defendants. Even though he also
names the members of the adjustment committee and the
warden as defendants, these additional defendants, by
Hoskins’ account of events, did not participate in acts of
retaliation. Thus, we can affirm the dismissal of Hoskins’
suit as to them.
  Accordingly, we VACATE the dismissal of Hoskins’ retalia-
tion claim against Officer Lenear, Captain Schott, and
Officer Bock, and REMAND for further proceedings. In all
other respects, the judgment of the district court is AF-
FIRMED.
6                                        No. 03-4190

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—1-7-05

Source:  CourtListener

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