Kervin v. Barnes

• Citation: 787 F.3d 833
• Decision Date: 29 May 2015
• Docket Number: No. 14–2983.,14–2983.
• Parties: Shane KERVIN, Plaintiff–Appellant, v. La Clair BARNES, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

787 F.3d 833

Shane KERVIN, Plaintiff–Appellant

v.La Clair BARNES, et al., Defendants–Appellees.

No. 14–2983.

United States Court of Appeals, Seventh Circuit.

Submitted April 14, 2015.

Decided May 29, 2015.

Shane Kervin, Bunker Hill, IN, pro se.

Before POSNER, FLAUM, and ROVNER, Circuit Judges.

Opinion

POSNER, Circuit Judge.

Shane Kervin, an inmate of an Indiana prison, appeals the dismissal of his suit in which, invoking 42 U.S.C. § 1983, he alleges that prison officials violated his constitutional rights because of his insisting on being allowed to see his lawyer, who had come to the prison to speak with him. He contends that he was placed in segregation as punishment for insisting on keeping his appointment with the lawyer and denied his right to due process of law when his attempts to seek redress through the prison's grievance system for his wrongful punishment were thwarted by biased grievance officers. The district judge dismissed the suit on the pleadings.

A prison guard forbade Kervin to enter the prison's visitation room to meet with his lawyer. (We've not been told the purpose of the meeting.) The guard relented after some minutes and permitted the meeting, but according to Kervin told him he'd write up a false report and have him placed in segregation. And indeed it appears that Kervin was forced to serve up to 30 days in segregation and temporarily (we do not know for how long) denied telephone and commissary privileges—punishments that he says he was unable to avert because of the hostility to him of the prison's grievance officers.

The district judge gave Kervin two opportunities to amend his complaint in order to clarify his claims, but was dissatisfied with Kervin's response and after screening the complaint pursuant to 28 U.S.C. § 1915A for nonfrivolous claims ruled that Kervin had failed to state a valid claim. The complaint itself alleged that despite the guard's threat to file a false report Kervin had been punished for defying the guard's order by asking to be let out of the day room to meet with his lawyer after being told that he could not leave the room just yet. So either the guard did not file a false report despite his threat to do so or the report was disregarded, for by Kervin's own account it was not the basis of his punishment—his backtalk was. And backtalk by prison inmates to guards, like other speech that violates prison discipline, is not constitutionally protected. Ustrak v. Fairman, 781 F.2d 573, 580 (7th Cir.1986) (“We can imagine few things more inimical to prison discipline than allowing prisoners to abuse guards and each other. The level of violence in American prisons makes it imperative that the authorities take effective steps to prevent provocation”); see also Watkins v. Kasper, 599 F.3d 791, 799 (7th Cir.2010) ; Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir.2009) ; Gee v. Pacheco, 627 F.3d 1178, 1187–88, 1191 (10th Cir.2010).

Kervin further argues that he was punished not for his insubordinate speech but rather for meeting with, and presumably talking to, his lawyer, which he also claims was protected speech. But we aren't told anything about the lawyer's meeting with Kervin, and so we don't know whether it involved any protected speech.

As for Kervin's due process claim, the judge ruled that neither the loss of privileges was a severe enough sanction, nor his time in segregation long enough, to deprive him of any liberty protected by the due process clause of the Fourteenth Amendment.

The judge further ruled that Kervin's claim against the allegedly hostile grievance officers failed because they had not blocked him from pursuing his grievances in court. The Prison Litigation Reform Act does not require a state to create a grievance procedure for its prison inmates, 42 U.S.C. § 1997e(b), though if it does yet prevents a prisoner from utilizing it he will be excused from having to exhaust the grievance process as a prerequisite to suing in federal court on the ground that the grievance is of federal constitutional magnitude. Kaba v. Stepp, 458 F.3d 678, 684–86 (7th Cir.2006). But the inadequacies of the grievance procedure itself, as distinct from its consequences, cannot form the basis for a constitutional claim. Bridges v. Gilbert, supra, 557 F.3d at 555 ; Grieveson v. Anderson, 538 F.3d 763, 772–73 (7th Cir.2008) ; Adams v. Rice, 40 F.3d 72, 75 (4th Cir.1994).

The district judge rejected Kervin's complaint about the grievance proceedings not because of Kervin's ability to litigate his grievance, however, but rather because his stints in segregation and denial of telephone and commissary privileges were, the judge decided, neither “atypical” nor “significant,” hence not “a dramatic departure from the basic conditions of [the prisoner's] sentence.” And so, consistently with Sandin v. Conner, 515 U.S. 472, 484–85, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), from which we've been quoting, Kervin hadn't been deprived of liberty.

The Supreme Court has noted that “in Sandin's wake the Courts of Appeals have not reached consistent conclusions for identifying the baseline from which to measure what is atypical and significant in any particular prison system. This divergence indicates the difficulty of locating the appropriate baseline.” Wilkinson v. Austin, 545 U.S. 209, 223, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (citations omitted).

Compare Beverati v. Smith, 120 F.3d 500, 504 (4th Cir.1997), which thought disgusting conditions of administrative segregation not to be actionable because they had lasted for “only” six months, with Hatch v. District of Columbia, 184 F.3d 846, 858 (D.C.Cir.1999), holding that 29 weeks (a shade over six months) in administrative segregation could be actionable even though the conditions of segregation, although restrictive, were not unsanitary or otherwise disgusting, id. at 854 —were not, as alleged in Beverati, “infested with vermin,” “smeared with human feces and urine,” “flooded with water from a leak in the toilet on the floor above,” etc. 120 F.3d at 504. Wilkerson v. Goodwin, 774 F.3d 845, 853 (5th Cir.2014), and Brown v. Oregon Department of Corrections, 751 F.3d 983, 988 (9th Cir.2014), sensibly suggest that the severity of treatment should be combined with its duration in assessing the gravity of the conditions complained of by the prisoner. See also Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir.1996). But this need not imply that a rigid six-month period of inhuman confinement is a condition precedent to a deprivation of a prisoner's constitutionally protected liberty.

Marion v. Radtke, 641 F.3d 874, 876 (7th Cir.2011), points out that that “the right comparison...