Lekas, Christopher v. Briley, Kenneth ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1420
CHRISTOPHER LEKAS,
Plaintiff-Appellant,
v.
KENNETH BRILEY, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 C 5181—Robert W. Gettleman, Judge.
____________
ARGUED SEPTEMBER 22, 2004—DECIDED APRIL 25, 2005
____________
Before COFFEY, WILLIAMS, and SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. Christopher Lekas, a prisoner
in the custody of the Illinois Department of Corrections
(IDOC), makes several constitutional claims relating to his
placement and confinement in disciplinary segregation. The
district court dismissed his complaint for failure to state a
claim. We affirm this dismissal because we find that the
allegations of Lekas’s complaint effectively plead him out of
court by detailing conditions that do not amount to a
deprivation of a liberty interest, and because he failed to
2 No. 04-1420
present arguments before the district court linking the
allegations of retaliation in his complaint to his Section
1983 claim, leaving him with no case or controversy upon
which to base a constitutional challenge of Section 1997e(e)
of the Prison Litigation Reform Act of 1995 (codified at
42 U.S.C. § 1997e(e)).
I. BACKGROUND
In reviewing a district court’s dismissal of a complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim, we “take the plaintiff’s factual allegations as
true and draw all reasonable inferences in his favor.”
DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (citing
Strasburger v. Bd. of Educ., 143 F.3d 351, 359 (7th Cir.
1998)). While imprisoned at the Pinckneyville Correction
Center, Lekas cultivated a relationship on “friendly terms”
with one of the prison’s female employees—Tyone Murray.
By February 2000, however, Lekas was transferred to
another IDOC prison—Menard Correctional Center. Once
at Menard, Lekas found the prison’s medical treatment of
his various medical conditions inadequate, leading him and
his father to file with the Administrative Review Board
(ARB) and highly placed IDOC officials a number of
administrative grievances and complaints. At least six of
those grievances, which had been filed between July and
October of 2000, were denied sometime around November 6,
2000.
In early November of 2000, while still incarcerated at
Menard, Lekas mailed Murray a package containing two
ceramic mugs and a personal letter via a third party. Under
the IDOC’s Rule against “Abuse of Privileges” (Rule 310),
inmates are prohibited from “corresponding or commu-
nicating with a . . . person after the committed person has
received notice that such person has informed the [IDOC]
that he or she does not wish to receive correspondence from
No. 04-1420 3
the committed person.” Ill. Admin. Code tit. 20, § 504, Table
A. There is, however, no rule against inmates sending mail
or gifts to an IDOC facility employee.
Soon after he had mailed his package to Murray, on
November 9, 2000, a disciplinary report was issued, stating
that Lekas was “being placed on investigative status for his
possible involvement in sending unauthorized correspon-
dence.”1 That same day, Lekas was transferred to Stateville
Correctional Center, where he was placed in the segregation
unit under “investigative status.” Lekas was not informed
as to the precise basis for his reclassification to “investiga-
tive status” until November 17, 2000. At that time, an
investigator for the IDOC informed him that he was being
questioned regarding the package he sent to Murray. In
response to the investigator’s questions, Lekas explained
that Murray had given him her address, a photograph of
herself with her child, and permission to correspond with
her. Notwithstanding his explanation, a disciplinary report
was issued from Pinckneyville on December 8, 2000,
officially charging Lekas with violation of IDOC Rules
against “Abuse of Privileges” (Rule 310) and “Dangerous
Communications” (Rule 208).2
A hearing on these charges was held before the Adjustment
Committee at Stateville on December 13, 2000. In response
1
This disciplinary report was issued by defendant C.T. Caraway
(an employee at Menard) and approved by defendants Joe Cowan
(a Menard employee signing as “Shift Supervisor”) and Anthony
Ramos (a Menard Correctional Officer signing as “Reviewing
Officer”).
2
This second disciplinary report was issued by defendant
Tim Laird (a Correctional Lieutenant in Internal Affairs) and
approved by defendants Michael Chapman (a Pinckneyville
employee acting as “Shift Supervisor”), Theopolas Smith (a
Pinckneyville employee acting as “Reviewing Officer”), and
P. Brooks (a Pinckneyville employee acting as “Hearing Investiga-
tor”).
4 No. 04-1420
to the Abuse of Privileges charge, Lekas again asserted that
Murray had permitted and encouraged his correspondence,
and had not, as an “Abuse of Privileges” violation would
require, given notice that his correspondence was un-
welcome. Furthermore, his custodians proffered no evidence
that would suggest that Murray gave such notice, as was
their burden to establish the charge. Notwithstanding this
alleged lack of evidence, the Adjustment Committee, com-
posed of defendants Carol DelPriore, Daniel Luce, and
Michael Dangerfield, found Lekas guilty of Abuse of
Privileges, and sentenced him to three months of segrega-
tion, demoted him to “C Grade” for three months, and denied
him commissary privileges for three months. The committee
did, however, find Lekas not guilty of the “Dangerous
Communications” charge.
Lekas then pursued an administrative appeal by filing a
grievance before the ARB, asserting, inter alia, that the pro-
cess of his disciplinary proceedings had violated his civil
rights. But that grievance also failed, and allegedly resulted
in its own, independent violations of department rules on
grievance proceedings.3
When all was said and done, Lekas had served about 90
days in segregated confinement—from November 9, 2000
until approximately February 9, 2001. While in segregation,
he was unable to participate in prison programs, educa-
tional programs, and work programs; he lost prison em-
ployment, wages, contact visits, telephone privileges, visits
3
Lekas alleges that the Chairman of the ARB (defendant Robert
Radmacher) violated IDOC Rule 850(e) and (f) (codified at Ill.
Admin. Code tit. 20, § 504, Table A), which require that all ARB
decisions be reviewed and approved by the IDOC Director (here,
defendant Donald N. Snyder, Jr.), by reviewing and concurring
with his own decision by signing the Director’s name to the report.
Lekas lodged a grievance regarding this practice by Radmacher,
but ultimately this complaint, too, was denied.
No. 04-1420 5
from clergy, and access to church; and he was allowed fewer
visits from family, exercise privileges, commissary privileges,
personal possessions, and audio/visual items. According to
his complaint, these conditions were “significantly atypical”
from those in the general prison population.
Lekas, proceeding pro se, filed a Section 1983 claim in
federal district court, alleging that several of his custodians
violated his due process rights by depriving him of a liberty
interest created by Illinois law when they placed him in
segregation in contravention of the department’s own rules.
The district court immediately dismissed the complaint sua
sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B), for failure to
state a claim upon which relief could be granted, reasoning
that this Circuit had already found in cases such as Wil-
liams v. Ramos, 71 F.3d 1246 (7th Cir. 1995) that the
conditions of segregation in Illinois prisons did not create
such an “atypical and significant hardship” as to give rise to
an enforceable liberty interest. Lekas, however, prevailed
upon the court to reinstate his case by arguing in a Motion
for Relief from Judgment under Federal Rule of Civil
Procedure 60(b) that conditions of segregation at Stateville
had taken a turn “for the worse” since Williams was decided.
Thereafter, Lekas was appointed counsel, and ultimately
granted leave to file a Second Amended Complaint.
The Second Amended Complaint states two claims for re-
lief. Count I, brought pursuant to 42 U.S.C. § 1983, alleges
that the various prison employees named above, as well as
defendant Kenneth Briley (the Chief Administrative Officer
of Stateville)—together, “State Defendants”—violated his
constitutional right to procedural due process by placing
him in disciplinary segregation in contravention of their
own mandatory department rules, and without evidence
supporting the elements of the charge that would warrant
his segregation. Count II joins the U.S. Attorney General
(“Federal Defendant”) seeking a declaratory judgment that
Section 1997e(e) of the Prison Litigation Reform Act of 1995
6 No. 04-1420
is unconstitutional both facially and as applied to the facts
of this case. This second count asserts that Section 1997e(e)
deprives prisoners of due process and denies them equal
protection by leaving them without remedy for constitu-
tional deprivations resulting in solely non-physical injuries.
The district court, however, dismissed this Second
Amended Complaint upon motions by both State and
Federal Defendants under Federal Rule of Civil Procedure
12(b)(6). In particular, the court found that Count I failed
to state a claim because Lekas’s segregation as alleged did
not amount to a deprivation of a liberty interest and there-
fore could not form the basis of a procedural due process
claim. With respect to Count II, the court found Lekas’s
Section 1997e(e) challenge “untenable,” concluding that the
provision was “merely a limitation on recovery,” and not—
as the complaint alleged—an outright bar. Lekas appeals.
II. ANALYSIS
A complaint may be dismissed under Rule 12(b)(6) for
“failure to state a claim upon which relief can be granted.”
Accordingly, a complaint’s ability to survive a Rule 12(b)(6)
challenge inevitably turns on its ability to satisfy Rule 8 of
the Federal Rules of Civil Procedure—the general rules of
pleading a claim for relief. Under Federal Rule of Civil
Procedure 8(a)(2), plaintiff’s complaint need only contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” This “short and plain state-
ment,” with irrelevant exceptions, requires the plaintiff to
plead merely “the bare minimum facts necessary to put the
defendant on notice of the claim so that he can file an
answer,” Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002),
and not an exhaustive recitation of the facts or elements of
that claim, Walker v. Thompson, 288 F.3d 1005, 1007 (7th
Cir. 2002). Indeed, “[a] complaint should be dismissed for
failure to state a claim only if no relief could be granted
No. 04-1420 7
under any set of facts that could be proved consistent with
the allegations.” DeWalt v. Carter, 224 F.3d 607, 612 (7th
Cir. 2000) (internal quotations omitted); see also Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984) (finding dismissal
under Rule 12(b)(6) proper “only if it is clear that no relief
could be granted under any set of facts that could be proved
consistent with the allegations”); Sanville v. McCaughtry,
266 F.3d 724, 732 (7th Cir. 2001) (“[I]f it is possible to
hypothesize a set of facts, consistent with the complaint,
that would entitle the plaintiff to relief, dismissal under
Rule 12(b)(6) is inappropriate.” (quoting Veazey v.
Communication & Cable of Chi., Inc., 194 F.3d 850, 854
(7th Cir. 1999))).
Within this liberal framework of notice pleading, Lekas
seeks to state a claim against State Defendants under
42 U.S.C. § 1983. “In order to state a claim under Section
1983, a plaintiff must allege that the defendants deprived
him of a right secured by the Constitution or laws of the
United States, and that the defendants acted under color of
state law.” Brokaw v. Mercer County, 235 F.3d 1000, 1009
(7th Cir. 2000); see also Gomez v. Toledo, 446 U.S. 635, 640
(1980). Here, Lekas has alleged that the State Defendants
denied him a liberty interest protected by the due process
clause of the Fourteenth Amendment by placing him in
disciplinary segregation without affording him beforehand
the procedural protections of due process. There is no dispute
that Lekas’s complaint adequately alleges that the defen-
dants acted under color of state law. What is in dispute is
whether Lekas has sufficiently alleged a violation of a
federal right.
Lekas argues that his due process rights were violated
because he was placed in disciplinary segregation without
any evidence to support the key elements of the infraction
of which he was charged, and because the IDOC failed to
follow its own mandatory departmental rules for conducting
his discipline hearing and administrative review. However,
8 No. 04-1420
before wrestling with the contours and nuances of the
process allegedly rendered or withheld, we must first de-
termine whether any process was in fact constitutionally
due.
The Due Process Clause of the Fourteenth Amendment
provides: “[N]or shall any State deprive any person of life,
liberty, or property, without due process of law.” U.S. CONST.
amend XIV, § 1. Accordingly, the procedural protections of
the Due Process Clause will only be triggered if state action
implicates a constitutionally protected interest in life,
liberty, or property. Bd. of Regents of State Colleges v. Roth,
408 U.S. 564, 570-71 (1972) (noting that “whether due
process requirements apply in the first place” depends on
whether an “interest is within the Fourteenth Amendment’s
protection of liberty and property”); see also Carey v.
Piphus, 435 U.S. 247, 259 (1978) (“Procedural due process
rules are meant to protect persons not from the deprivation,
but from the mistaken or unjustified deprivation of life,
liberty, or property.”). Thus it follows that a plaintiff cannot
under Section 1983 complain of procedural due process
violations unless the state has first deprived him or her of
such a constitutionally protected interest. Kentucky Dept. of
Corr. v. Thompson, 490 U.S. 454, 460 (1989) (“We examine
procedural due process questions in two steps: the first asks
whether there exists a liberty or property interest which
has been interfered with by the State, the second examines
whether the procedures attendant upon that deprivation
were constitutionally sufficient.” (citations omitted));
Williams v. Ramos, 71 F.3d 1246, 1248-49 (7th Cir. 1995)
(“When a plaintiff brings an action under § 1983 for proce-
dural due process violations, he must show that the state
deprived him of a constitutionally protected interest in ‘life,
liberty, or property’ without due process of law.”) (citing
Zinermon v. Burch, 494 U.S. 113, 125-26 (1990)).
Here, the alleged deprivation to Lekas was his placement
in disciplinary segregation—purportedly in contravention
No. 04-1420 9
of a liberty interest. “The Due Process Clause,” however,
“does not necessarily protect prisoners against the imposi-
tion of disciplinary segregation.” Williams v. Ramos, 71
F.3d 1246, 1249 (7th Cir. 1995). Rather, prison administra-
tors are “accorded wide-ranging deference in the adoption
and execution of policies and practices that in their judg-
ment are needed to preserve internal order and discipline
and to maintain institutional security.” Bell v. Wolfish, 441
U.S. 520, 547 (1979). For this reason, “[a] prisoner has no
liberty interest in remaining in the general population.”
Williams, 71 F.3d at 1248; see also Sandin v. Conner, 515
U.S. 472, 484-86 (1995), Hewitt v. Helms, 459 U.S. 460, 467-
68 (1983); Meriwether v. Faulkner, 821 F.2d 408, 414 (7th
Cir. 1987).
But here Lekas does not merely object to his placement in
disciplinary segregation, but rather his placement there in
contravention of the IDOC’s own mandatory rules and
regulations. Indeed, prior to the Supreme Court’s ruling in
Sandin v. Conner, statutory or regulatory “language of
an . . . unmistakably mandatory character”—such as that
provided by IDOC rules and regulations—was recognized as
creating a liberty interest protected by the Due Process
Clause. Hewitt, 459 U.S. at 471-72; see also Sandin, 515 U.S.
at 481-83; Thomas v. Ramos, 130 F.3d 754, 760 (7th Cir.
1997); Williams, 71 F.3d at 1249. The Sandin Court, how-
ever, abandoned the methodology of Hewitt and its progeny,
shifting the focus of the liberty interest inquiry away from
the nature of the statutory and regulatory language and
toward the nature of the deprivation actually suffered by
the prisoner. Thus, today, a prisoner’s liberty interest, and
incumbent entitlement to procedural due process protections,
generally extends only to freedom from deprivations that
“impose[ ] atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.” Sandin,
515 U.S. at 483-84. In the absence of such “atypical and
significant” deprivations, the procedural protections of the
Due Process Clause will not be triggered.
10 No. 04-1420
Now much hinges upon what constitutes an “atypical and
significant hardship,” and the Sandin Court again provides
guidance. In finding that the placement of the plaintiff-
prisoner in disciplinary segregation for thirty days did not
constitute an “atypical and significant hardship,” the Sandin
Court relied upon three factors. First, the prisoner’s “dis-
ciplinary segregation, with insignificant exceptions, mirrored
those conditions imposed upon inmates in administrative
segregation and protective custody.” Sandin, 515 U.S. at
486. Second, “a comparison between inmates inside and
outside disciplinary segregation [revealed that] the State’s
action in placing [plaintiff in disciplinary segregation] for 30
days did not work a major disruption in his environment.” Id.Finally, “the State’s action [would not] inevitably affect the
duration of [plaintiff’s] sentence.” Id. at 487. Accordingly,
courts today charged with assessing whether conditions of
confinement pose an atypical and significant hardship are
in essence counseled by Sandin to (1) compare the condi-
tions of disciplinary segregation to those of discretionary
segregation;4 (2) compare the conditions of disciplinary
segregation to those in the general prison population; and
(3) determine whether the disciplinary action affects the
length of the inmate’s sentence.
4
The term “discretionary segregation”—encompassing both ad-
ministrative segregation and protective custody—refers to “single-
person cells in which persons are sometimes confined not because
they have misbehaved but simply because the prison has no other
space, wishes to protect some prisoners from others, wishes to
keep prisoners isolated from one another in order to minimize the
risks of riots or other disturbances, wishes to prevent the spread
of disease, and so forth.” Wagner v. Hanks, 128 F.3d 1173, 1176
(7th Cir. 1997). Such nondisciplinary segregation is also employed
for prisoners who are an escape risk, incorrigible, gang leaders, or
awaiting transfer or classification. Id. at 1174. See also Hewitt v.
Helms, 459 U.S. 460, 468 (1983).
No. 04-1420 11
There remains, however, some doubt as to how courts
should weigh these three factors. Certainly, the third fac-
tor—prolonging the prisoner’s incarceration—persists as
both a universally accepted and readily ascertainable basis
for a due process claim in this area. Wagner v. Hanks, 128
F.3d 1173, 1176 (7th Cir. 1997) (“When [prison discipline]
takes the form of prolonging the prisoner’s incarceration or
otherwise depriving him of what has been held to be liberty
or property within the meaning of the due process clauses,
it is securely actionable.”). Lekas, however, does not allege
that his segregation prolonged his sentence. Rather, what
continues to be perplexing is the comparison group against
which the conditions of disciplinary segregation are to be
compared. While Sandin suggests the confinement be
compared against both discretionary segregation as well as
the general prison population, the realities of prison
administration suggest that these two control groups are in
fact one and the same.
Sandin’s prescribed comparison between disciplinary
segregation and the general prison population seems in-
evitably subsumed by its prescribed comparison between
disciplinary segregation and discretionary segregation. This
is because, in every state’s prison system, any member of
the general prison population is subject, without remedy, to
assignment to administrative segregation or protective
custody at the sole discretion of prison officials, Wagner,
128 F.3d at 1176 (“[E]ven a prisoner who had committed a
white-collar crime and had been assigned to the lowest-
security prison in the state’s system might find himself
in segregation for a nondisciplinary reason.”); see also
Hewitt, 459 U.S. at 468 (“[A]dministrative segregation is the
sort of confinement that inmates should reasonably antici-
pate.”); Meriwether v. Faulkner, 821 F.2d 408, 414 (7th Cir.
1987) (“Given the broad uses of administrative segregation . . .
inmates should reasonably anticipate being confined in
administrative segregation at some point during their incar-
12 No. 04-1420
ceration.”); if for no other reason than to alleviate over-
crowding concerns within the prison. See also supra, note 4
(listing various valid purposes for discretionary segregation).
Such reassignment from the general population to discre-
tionary segregation does not constitute a deprivation of a
liberty interest. Sandin, 515 U.S. at 486; Hewitt, 459 U.S.
at 468; Crowder v. True, 74 F.3d 812, 815 (7th Cir. 1996)
(holding that the placement of an inmate in nondisciplinary
segregation for three months did not constitute a depriva-
tion of a liberty interest); see also Williams, 71 F.3d at 1248(“A prisoner has no liberty interest in remaining in the gen-
eral population.”). Because any member of the general prison
population may at any time find himself in segregation for
a nondisciplinary reason, the conditions of discretionary
segregation provide the most apt benchmark for assessing
whether the nature of a plaintiff’s confinement in disciplinary
segregation works “a major disruption in his environment.”
Thus, when a court compares disciplinary segregation to the
general prison population, it is effectively comparing dis-
ciplinary segregation to discretionary segregation. Ac-
cordingly, “under Sandin the key comparison is between
disciplinary segregation and nondisciplinary segregation
rather than between disciplinary segregation and the
general prison population.” Wagner v. Hanks, 128 F.3d
1173, 1175 (7th Cir. 1997).
Indeed, taking Sandin’s prescribed comparisons to their
logical extremes, it is possible that the conditions of discre-
tionary segregation against which the plaintiff’s confinement
is to be judged are not necessarily those of the prison in
which the plaintiff is incarcerated, but rather those of the
most restrictive prison in the state penal system, Wagner v.
Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997) (“We do not
think that comparison can be limited to conditions in the
same prison, unless it is the state’s most secure one. To
distinguish between the different parts of the same prison,
on the one hand, and the different prisons in the same sys-
No. 04-1420 13
tem, on the other, would be arbitrary.”) (internal citations
omitted), and perhaps even those of the most restrictive
prison in the entire country, id. at 1176 (“The logic of Sandin
implies that the conditions of [plaintiff’s] disciplinary segre-
gation are atypical only if no prison in the United States to
which he might be transferred for nondisciplinary reasons
is more restrictive.”). This is a harsh, and perhaps uninten-
tional, result. But it is also inescapable, in light of the fact
that a prisoner may be transferred from one state prison to
another without implicating the inmate’s liberty inter-
est—even where the conditions of the destination prison are
“much more disagreeable” than those of the originating
prison. Meachum v. Fano, 427 U.S. 215, 225 (1976); see also
Montayne v. Haymes, 427 U.S. 236, 242 (1976) (“As long as
the conditions or degree of confinement to which the
prisoner is subjected is within the sentence imposed upon
him and is not otherwise violative of the Constitution, the
Due Process Clause does not in itself subject an inmate’s
treatment by prison authorities [including prison transfers]
to judicial oversight.”).
Suffice it to say, “when the entire sanction is confinement
in disciplinary segregation for a period that does not exceed
the remaining term of the prisoner’s incarceration, it is
difficult to see how after Sandin it can be made the basis of
a suit complaining about a deprivation of liberty.” Wagner,
128 F.3d at 1176. With this understanding of the law, we
turn to the allegations of Lekas’s complaint.
Here, Lekas attempts to plead a deprivation of a liberty
interest—i.e., an atypical and significant hardship—by
alleging the following:
The conditions to which Plaintiff was subjected
while in segregation at Stateville from November 9,
2000 until approximately February 9, 2001 differed
markedly and appreciably from, and were signi-
ficantly atypical from, those of the general prison
population, including but not limited to: inability to
14 No. 04-1420
participate in prison programs, inability to partici-
pate in educational programs, inability to par-
ticipate in work programs and resulting loss of
prison employment and wages, loss of contact visits,
loss of telephone usage, inability or substantially
curtailed ability to receive visits from family, ina-
bility to attend church, no visits from clergy, drastic
reduction in exercise privileges and in commissary
access both in terms of frequency and the types of
items allowed, drastic reduction in the number and
nature of personal items that prisoners are allowed
to have in their possession, and no access or very
little access to audio/visual items.
Second Amended Complaint ¶ 31.
This court has twice before had the opportunity to com-
pare conditions of disciplinary segregation to those of dis-
cretionary segregation at Lekas’s prison (Stateville), on
both occasions holding that the conditions of disciplinary
segregation there were not so atypical and significant as to
constitute a deprivation of a liberty interest. Williams v.
Ramos, 71 F.3d 1246 (7th Cir. 1995); Thomas v. Ramos, 130
F.3d 754 (7th Cir. 1997). In fact, the conditions of dis-
ciplinary segregation at Stateville found by the Williams
and Thomas courts seven to ten years ago are strikingly
similar to those complained of by Lekas today. In Williams,
the plaintiff-prisoner had been locked in a closed-front cell
for 19 days, 24 hours a day, prohibited from participating in
general population activities, handcuffed whenever he left
his cell, and substantially deprived of contact with other
inmates and staff. Williams, 71 F.3d at 1249.
In Thomas, the plaintiff-prisoner (Thomas) was subjected
to 24 hour a day segregation5 for 70 days in a locked cell.
5
Unlike Lekas, who was allegedly placed in solitary confinement,
the plaintiff-prisoner in Thomas was confined with another in-
(continued...)
No. 04-1420 15
Thomas, 130 F.3d at 757-58, 761. Even more akin to Lekas’s
confinement, Thomas was prohibited from participating
in prison programs, including all classes and programs of-
fered to inmates in the general population and protective
custody. Id. at 760. He was “barred from all prison activities,
including, among others, educational and work programs,”
resulting in an inability to work at assignments and earn
pay. Id. at 758, 760. Thomas had “little contact with any
other people,” was prohibited from accessing the prison “day
room,” and was allowed to leave his cell only to visit with a
doctor and the segregation superintendent, id. at 757-58,
760—suggesting the deprivation of contact visits, visits
from clergy, and visits from family, as well as an inability
to attend church or use a telephone. He was completely de-
nied exercise privileges, both in the yard and the gym, id.
at 758, 760 (cf. Second Amended Complaint ¶ 31 (alleging
only a “drastic reduction” of Lekas’s exercise privileges, as
opposed to a complete denial)), and he lost all commissary
privileges, id. at 757, 762 n.8 (cf. Second Amended
Complaint ¶ 31 (alleging only a “drastic reduction” of Lekas’s
commissary access, as opposed to a complete loss)).
Notwithstanding the litany of deprivations set forth
in Williams and Thomas, this court in both cases, employ-
ing both Sandin prescribed comparisons, found that the
conditions of Stateville disciplinary segregation were not
actionably different from those in either the general prison
population, Thomas, 130 F.3d at 762 (“In spite of [plaintiff’s]
extended period in disciplinary segregation, we are con-
vinced that it did not result in an atypical and significant
deprivation because the conditions he experienced did not
5
(...continued)
mate. However, that assignment in Thomas presented a different,
perhaps more onerous, hardship, in that two inmates were forced
to share a cell “approximately as wide as [the plaintiff ’s] out-
stretched arms and twice that long.” Thomas, 130 F.3d at 757.
16 No. 04-1420
greatly exceed what one could expect from prison life gen-
erally.”) (quotations omitted); Williams, 71 F.3d at 1250 (“We
do not believe, however, that [plaintiff’s] catalogue of harms
greatly exceeds what one could expect from prison life gen-
eraslly, as ‘[l]awful imprisonment necessarily makes unavail-
able many rights and privileges of the ordinary citizen, a
retraction justified by the considerations underlying our
penal system.’ ”) (quoting Wolff v. McDonnell, 418 U.S. 539,
555 (1974)); or discretionary segregation, Thomas, 130 F.3d
at 762 (“[T]here is no indication that persons in disciplinary
segregation [at Stateville] receive treatment substantially
different than that given persons in discretionary types of
segregation.”) (quoting Williams, 71 F.3d at 1250). Accord-
ingly, in both cases, this court found that the conditions of
disciplinary segregation at Stateville were not so atypical
and significant as to constitute a deprivation of an inmate’s
liberty interest. Thomas, 130 F.3d at 762; Williams, 71 F.3d
at 1250.
However, the fact that the conditions of disciplinary se-
gregation at Stateville were found over seven to ten years
ago not to work a deprivation of a liberty interest alone does
not warrant the dismissal of Lekas’s claim. Indeed, recogni-
tion of this fact led the district court to reinstate Lekas’s
case. Within the spacious universe of possibilities at this
stage of the litigation, limited only by a court’s ability to
hypothesize reasonably facts consistent with the allegations
of the complaint, Sanville v. McCaughtry, 266 F.3d 724, 732
(7th Cir. 2001), it is reasonably possible that conditions at
Stateville may have changed for the worse over the years
since Williams and Thomas were decided.
A comparison of our past rulings on the conditions of
disciplinary segregation at Stateville to those conditions
alleged in the case at bar, however, suggests that little, if
anything, has changed in the prison’s administration of dis-
ciplinary segregation over the past seven to ten years.
While Lekas insists that those conditions have deteriorated
No. 04-1420 17
since our pronouncements in Williams and Thomas, his own
complaint betrays his argument. Lekas’s complaint alleges
in painstaking detail the deprivations he has putatively
endured—deprivations virtually indistinguishable from
those found in Williams and Thomas, save for the duration
of his punishment.6 But while Lekas’s 90 day segregation
was longer than the 19 day confinement in Williams and
even the 70 day segregation in Thomas, it was still not so
long as to work an atypical and significant hardship.
Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995)
(“[E]ven if prisoners are entitled to due process protections
before extreme terms of segregation are imposed, [a]
sentence of six months “is not such an extreme term.”).7
Though he was not required to set forth such particular
facts in his complaint, Higgs v. Carver, 286 F.3d 437, 439
(7th Cir. 2002) (interpreting the “short and plain statement”
requirement of Rule 8(a)(2) as requiring allegations of no
more than “the bare minimum facts necessary to put the
defendant on notice of the claim so that he can file an
6
Lekas’s counsel at oral argument placed great emphasis on the
fact that the plaintiffs in both Sandin and Williams had, unlike
Lekas, voluntarily requested placement in segregation prior to the
segregation of which they ultimately and respectively complained.
While such requests can serve as evidence that the hardships of
segregation are neither atypical nor significant, “we do not think
a prisoner’s subjective expectation is dispositive of the liberty
interest analysis.” Sandin v. Connor, 515 U.S. 472, 486 n.9 (1995).
7
Furthermore, for the first 34 days of his confinement, Lekas was
being held under investigative status and temporary confinement,
not disciplinary segregation. Second Amended Complaint at ¶¶
30, 38, 45, 48. Because “[b]oth temporary confinement and
investigative status have been determined to be discretionary
segregation, and do not implicate a liberty interest,” Thomas, 130
F.3d at 761, the net duration of Lekas’s disciplinary segregation
was only about 56 days—falling well short of an atypical and
significant term of punishment.
18 No. 04-1420
answer”), his decision to do so has subjected his complaint
to the indistinguishable, binding force of precedent that
now threatens to preclude his claims from moving forward.
The detailed hardships of which Lekas complains, as our
precedent reveals, are not so atypical and significant as to
constitute a deprivation of a liberty interest, and thereby
fail to trigger procedural due process protections.
We note, however, that the complaint’s catalogue of de-
privations is non-exhaustive. Second Amended Complaint
¶ 31 (listing hardships “including, but not limited to,” those
set forth therein). This hedging by Lekas precludes the court
from dismissing his claim solely on the basis of his prolix
recitation of hardships. American Nurses’ Association v.
Illinois, 783 F.2d 716, 725 (7th Cir. 1986) (finding that,
where particular discriminatory practices listed by a
complaint in support of a sex discrimination action are
“merely illustrative (‘not limited to’), the complaint would
not fail even if none of [the listed discriminatory practices]
were actionable”). Nonetheless, there remains an alternate
and independent ground on which we affirm the complaint’s
dismissal.
A plain reading of Lekas’s complaint compels us to
conclude that the conditions of disciplinary segregation at
Stateville do not differ in the slightest from those in dis-
cretionary segregation. The many deprivations Lekas is
alleged to have endured occurred during his placement in
what he generically refers to as “segregation at Stateville
from November 9, 2000 until approximately February 9,
2001.” Second Amended Complaint ¶ 31. While this blanket
reference alone suggests that Lekas was subjected to only
one classification of segregation without distinction during
the 90 day span between November 9, 2000 and February
9, 2001, a closer examination of his complaint reveals
otherwise. According to his complaint, Lekas was “placed in
the segregation unit and classified under investigative
No. 04-1420 19
status” on November 9, 2000. Second Amended Complaint
¶ 30. By December 8, 2000, he was “ordered [to]
continue . . . in ‘Temporary Confinement’ ” while awaiting
a hearing on the offense with which he was charged. Second
Amended Complaint ¶ 38. “Both temporary confinement
and investigative status,” however, “have been determined
to be discretionary segregation, and do not implicate a lib-
erty interest.” Thomas, 130 F.3d at 761 (emphasis added).
It was not until December 13, 2000—when the adjustment
committee found him guilty of the “Abuse of Privileges”
charge—that Lekas’s disciplinary segregation began. Second
Amended Complaint ¶¶ 45, 48. Thus, the 90 day segrega-
tion of Lekas alleged by the complaint—a span running
from November 9, 2000 to February 9, 2001—covers both a
34 day stint in discretionary segregation and a 56 day
stretch in disciplinary segregation.
Despite this reclassification from discretionary to disci-
plinary segregation on December 13, Lekas does not allege
any change in the conditions of his confinement commensu-
rate with that reclassification. Indeed, by failing to even
distinguish between the two—opting instead to lump them
both together under the single rubric of “segregation”—his
complaint avers that the conditions and commensurate
hardships of both were in fact identical. By averring
identical conditions in both disciplinary and discretionary
segregation, Lekas’s complaint itself suggests, in the very
least, that the conditions of his confinement did not mater-
ially change upon his assignment to disciplinary segregation.
Certainly, a comparison of the conditions of discretionary
and disciplinary segregation as alleged in the complaint
cannot yield a hardship so atypical and significant as to de-
prive Lekas of a liberty interest. See Wagner v. Hanks, 128
F.3d 1173, 1175 (7th Cir. 1997) (“[Where] the facilities and
conditions are indeed the same in disciplinary and nondisci-
plinary segregation except that prisoners in administrative
segregation or protective custody may be permitted ‘contact’
20 No. 04-1420
visits and are entitled to make phone calls to persons other
than lawyers[,] [t]he denial of so limited an increment of
privileges would be unlikely to effect a significant depriva-
tion of liberty.”).
Thus, the fatal deficiency in Lekas’s complaint is not that
it alleges too little, but that it alleges too much. Indeed, no
more than an allegation of a “loss of liberty” is required to
satisfy the requirements of notice pleading under the
Federal Rules of Civil Procedure. Wagner, 128 F.3d at 1174.
In contrast, here Lekas alleges detailed hardships largely
indistinguishable from those already found not to implicate
a prisoner’s remaining liberty interest, and conditions of
disciplinary segregation completely indistinguishable from
conditions of discretionary segregation. Such pleading
reveals that Lekas has not been deprived of a liberty
interest, and thereby deprives him of any ground on which
to invoke the protections of procedural due process. By
virtue of his complaint’s description of conditions in disci-
plinary segregation that mirror those in discretionary
segregation, and in light of its detailed recitation of hard-
ships that fall short of a liberty deprivation, Lekas has pled
himself out of court. American Nurses’ Association, 783 F.2d
at 725 (“A plaintiff who files a long and detailed complaint
may plead himself out of court by including factual allega-
tions which if true show that his legal rights were not
invaded.”); see also Ciarpaglini v. Saini, 352 F.3d 328, 331
(7th Cir. 2003) (holding that plaintiff “has simply pled
himself out of court by saying too much”); Jackson v.
Marion County, 66 F.3d 151, 153 (7th Cir. 1995) (“[A]
plaintiff can plead himself out of court by alleging facts
which show that he has no claim, even though he was not
required to allege those facts.”); Wroblewski v. City of
Washburn, 965 F.2d 452, 459 (7th Cir. 1992) (“We are not
required to ignore facts alleged in the complaint that un-
dermine plaintiff’s claim.”). Accordingly, we do not reach
the question of whether the administrative process actually
No. 04-1420 21
afforded Lekas in securing his disciplinary segregation
passes constitutional muster.
We briefly address Lekas’s Section 1983 retaliation claim.
“An act taken in retaliation for the exercise of a constitu-
tionally protected right is actionable under § 1983 even if
the act, when taken for a different reason, would have been
proper.” Matzker v. Herr, 748 F.2d 1142, 1150 (7th Cir.
1984), limited on other grounds by, Salazar v. Chicago, 940
F.2d 233, 240-41 (7th Cir. 1991). This includes retaliation
against an inmate for exercising his constitutional right to
access the courts or to use the prison grievance process. See,
e.g., Babcock v. White, 102 F.3d 267, 274-76 (7th Cir. 1996).
Indeed, a prisoner can sufficiently state a claim for relief
when he alleges that prison officials issued baseless
disciplinary tickets against him in retaliation for pursuit of
administrative grievances. Black v. Lane, 22 F.3d 1395,
1402-03 (7th Cir. 1994). Here, Lekas’s complaint alleges
that the investigation and segregation to which IDOC
officials subjected him “was undertaken in retaliation
against [him] for, inter alia, his filing of prior grievances.”
Second Amended Complaint ¶ 25. Unlike his other claims,
this retaliation allegation was not set forth in a separate
count. Nonetheless, such allegations would be sufficient in
form to state a retaliation claim under the notice pleading
requirements of Rule 8(a)(2).
Lekas, however, has waived his retaliation claim. “[W]hat
is fatal to [a] theory on appeal is [plaintiff’s] failure to
mention it to the district court when the time did come in
the proceedings below to present legal arguments linking
the claims described in the complaint to the relevant stat-
utory (or other) sources for relief.” Teumer v. General Motors
Corp., 34 F.3d 542, 545-46 (7th Cir. 1994); Kirksey v. R.J.
Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999)
(noting that even though a complaint may comply with the
simple notice pleading requirements of Rule 8(a)(2), it
may nonetheless be dismissed under Rule 12(b)(6) if the
22 No. 04-1420
plaintiff does not present legal arguments supporting the
“substantive adequacy” or “legal merit” of that complaint).
While Lekas alleged in his complaint that his segregation
was in retaliation for his filing of grievances, he did not pre-
sent legal arguments or cite relevant authority to substanti-
ate that claim in responding to defendants’ motion to
dismiss or in his own Rule 59(e) motion to alter or amend
the judgment.8 “Our system of justice is adversarial and our
judges are busy people. If they are given plausible reasons
for dismissing a complaint, they are not going to do the
plaintiff’s research and try to discover whether there might
8
In response to the defendants’ motion to dismiss, Lekas merely
makes passing reference to retaliatory motives on the part of
prison officials. This brief states that he “believes and so alleges
that the real reason for the investigative report was retaliation for
previously filed grievances”; that “the Constitutional deprivation
was, in part, due to retaliation for prior claims and grievances he
had filed”; and that his placement in segregation was “based on
flawed procedures and retaliatory conduct.” Response to Defen-
dants’ Motion to Dismiss at 2, 14, 15. These statements
alone—made without any reference to relevant legal authority,
and strewn about in his brief in the context of defending other,
well-articulated claims—do not suffice to mount a legal argument
that would alert the district court to the ostensible merits of a
separate Section 1983 retaliation claim.
In the alternative, Lekas contends that defendants in their mo-
tion to dismiss did not challenge the retaliation claim, and that he
was therefore not obliged at that stage to defend it against their
Rule 12(b)(6) challenge. Even accepting plaintiff ’s argument, it is
inescapable that the district court in granting defendants’ motion
to dismiss dismissed all claims brought by Lekas. If Lekas
believed the district court had dismissed an unchallenged retal-
iation claim in error, then the burden was on him to salvage that
claim through a Motion to Amend or Alter Judgment pursuant to
Federal Rule of Civil Procedure 59(e). While Lekas did file such a
motion under Rule 59(e), neither the word “retaliation” nor any
derivation thereof can be found therein.
No. 04-1420 23
be something to say against the defendants’ reasoning.”
Kirksey, 168 F.3d at 1041. Accordingly, Lekas’s Section
1983 retaliation claim has been waived.
Finally, because we affirm the dismissal of Lekas’s
Section 1983 due process claim and recognize the waiver of
his Section 1983 retaliation claim, no “case or controversy”
remains between these parties. In the absence of an actual
controversy, this court remains both constitutionally and
statutorily constrained from reaching Lekas’s second count
seeking a declaratory judgment that Section 1997e(e) of the
Prison Litigation Reform Act of 1995 (codified at 42 U.S.C.
§ 1997e(e)) is unconstitutional. See Deveraux v. City of
Chicago, 14 F.3d 328, 330 (7th Cir. 1994) (“[C]ourts may not
exercise [their] discretionary power [to issue declarations
under the Declaratory Judgment Act)] in the absence of an
‘actual controversy’ between the parties.”); see also U.S.
CONST. Art. III, § 2; Declaratory Judgment Act, 28 U.S.C.
§ 2201. Accordingly we affirm the district court’s dismissal
of this count as well.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district
court’s dismissal of Lekas’s claims against both state and
federal defendants.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-25-05