MEMORANDUM OPINION AND ORDER
MILTON I. SHADUR, Senior District Judge.
Based on the information in the application for leave to proceed in forma pauperis ("Application," Dkt. No. 3) that pro se prisoner Jorge Luis Pena ("Pena") has submitted with his self-prepared Complaint, the Application is granted. This Court orders the trust fund officer at Pontiac Correctional Center ("Pontiac"), Pena's place of incarceration, to deduct $15.79 from Pena's account there for payment to the Clerk of Court as an initial partial payment of the filing fee, and to continue making monthly deductions in accordance with this order, for which purpose the Clerk of Court is directed to send a copy of this order to the trust fund officer at Pontiac. Summonses, however, shall not issue. Instead Pena's Complaint [Dkt. No. 1] and this action are dismissed pursuant to this Court's initial review under 28 U.S.C. §§ 1915(e)(2) and 1915A,
Pena's Section 1983 Claim
Pena has invoked 42 U.S.C. § 1983 ("Section 1983") to file a "Complaint Under the Civil Rights Act, Title 42 Section 1983." Currently before this Court are Pena's application for leave to proceed in forma pauperis, his Complaint and his motion for attorney representation.
Because Pena's Application demonstrates that he cannot prepay the filing fee, it is granted on the limited basis provided for in Section 1915. Pursuant to Section 1915(b)(1) and (2) this Court orders (1) Pena to pay immediately (and Pontiac to remit automatically) $15.79 to the Clerk of Court as the initial partial filing fee and (2) Pena to pay (and Pontiac or any other custodial institution to which he may be transferred hereafter to remit automatically) to the Clerk of Court 20% of the amount deposited to his trust fund account for each calendar month during which he receives $10 or more, until the $350 filing fee is paid in full. This Court directs the Clerk of Court to ensure that a copy of this order is mailed to each facility where Pena is housed until the filing fee has been paid in full. All payments shall be sent to the Clerk of Court, United States District Court, 219 South Dearborn Street, Chicago, Illinois 60604, Attention: Cashier's Desk, 20th Floor, and shall clearly identify Pena's name and the case number assigned to this case.
Sections 1915(e)(2) and 1915A(a) require this Court to screen pro se prisoners' complaints and dismiss any such complaint, or any of its claims, if this Court determines that the complaint or a claim is frivolous or malicious, fails to state a claim on which relief may be granted or seeks monetary relief against a defendant who is immune from such relief (
Such a motion challenges the sufficiency of the complaint (
Courts also construe pro se complaints liberally (
On November 11, 2015, while Pena was an inmate at Stateville Correctional Center, his cell was searched by correctional officers. During that search two homemade weapons were confiscated. On that same day a disciplinary report was generated regarding the search and confiscation of the weapons. On November 24 Pena appeared before the Adjustment Committee on the disciplinary report. Pena denied the weapons were his and presented an affidavit from his cellmate in which the cellmate took full responsibility for the weapons being in the cell.
On November 28 the disciplinary report was rewritten at the request of the Adjustment Committee. As revised it included a statement that a correctional officer had observed Pena sitting on the bottom bunk before the search and that some of his papers were located under the mattress of the bottom bunk. After Pena had been transferred to Pontiac, the Stateville Adjustment found him guilty of possession of the contraband on December 3 and imposed as disciplinary measures (1) six months C grade, (2) six months segregation, (3) revocation of three months of good conduct credits, (4) six months of commissary restrictions and (5) three months of yard restrictions.
Although Pena grieved the guilty finding and the disciplinary report was expunged, that does not entitle him to Section 1983 relief. Why? Because that section requires a showing of a
In the familiar parlance of the Constitution's Due Process Clause, a person may not be deprived of life, liberty or property without due process of law (
Inmates have a liberty interest in time credits earned for good conduct (
Here the Complaint's allegations and exhibits confirm that Pena received proper notice of the charges against him, an opportunity to present witnesses and evidence and a written statement by the factfinder supported by some evidence. Although Pena takes issue with the findings reached by the diciplinary committee in light of his cellmate's having taken responsibility for the weapons being in the cell, what controls under
Moreover, it must be recalled that the disciplinary report was expunged. As
Hence Pena has no claim of a constitutional violation where, as here, the adjustment committee at Pontiac expunged the disciplinary report on October 20, 2016.
Accordingly this Court issues the order described in the opening paragraph of this opinion because of Pena's failure to state a claim on which relief may be granted. And also as stated at the outset, the present dismissal counts as a "strike" under Section 1915(g). In that respect Pena is warned that if a prisoner has had a total of three federal cases or appeals dismissed as frivolous, malicious or failing to state a claim, he may not file any further lawsuit in federal court without prepaying the entire filing fee unless he is in imminent danger of serious physical injury (