Case 2:19-cv-00065-JRS-MJD Document 48 Filed 08/04/20 Page 1 of 15 PageID #: 512
`
`
`CHARLES A. BENSON,
`
`
`
`
`
`RICHARD BROWN,
`
`v.
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
`
`Plaintiff,
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`
`No. 2:19-cv-00065-JRS-MJD
`
`
`
`
`
`
`ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
`AND DIRECTING ENTRY OF FINAL JUDGMENT
`
`For the reasons explained in this Entry, the motion for summary judgment filed by
`
`defendant Richard Brown, dkt. [32], is granted.
`
`I. Background
`
`
`
`Indiana prisoner Charles Benson brings this 42 U.S.C. § 1983 civil rights action against
`
`four defendants. Claims against three of the defendants were dismissed at screening. Dkt. 8. The
`
`remaining defendant, Warden Richard Brown, has moved for summary judgment.
`
`In his amended complaint, Mr. Benson alleges that the conditions of his confinement in
`
`disciplinary restrictive housing in the Security Control Unit (SCU or SHU) at Wabash Valley
`
`Correctional Facility (Wabash Valley) violated his Eighth and Fourteenth Amendment rights.
`
`Dkts. 8, 15, 16. The summary judgment motion is fully briefed and ripe for resolution.
`
`II. Summary Judgment Standard
`
`Summary judgment should be granted "if the movant shows that there is no genuine dispute
`
`as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
`
`56(a). "Material facts are those that might affect the outcome of the suit under applicable
`
`substantive law." Dawson v. Brown, 803 F.3d 829, 833 (7th Cir. 2015) (internal quotation omitted).
`
`
`
`1
`
`

`

`Case 2:19-cv-00065-JRS-MJD Document 48 Filed 08/04/20 Page 2 of 15 PageID #: 513
`
`"A genuine dispute as to any material fact exists 'if the evidence is such that a reasonable jury
`
`could return a verdict for the nonmoving party.'" Daugherty v. Page, 906 F.3d 606, 609-10 (7th
`
`Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court views
`
`the facts in the light most favorable to the non-moving party and all reasonable inferences are
`
`drawn in the non-movant's favor. Barbera v. Pearson Educ., Inc., 906 F.3d 621, 628 (7th Cir.
`
`2018). The Court cannot weigh evidence or make credibility determinations on summary judgment
`
`because those tasks are left to the fact-finder. Johnson v. Advocate Health and Hosps. Corp. 892
`
`F.3d 887, 893 (7th Cir. 2018).
`
`A. Undisputed Facts
`
`III. Discussion
`
`The following statement of facts was evaluated pursuant to the standards set forth above.
`
`That is, this statement of facts is not necessarily objectively true, but as the summary judgment
`
`standard requires, the undisputed facts and the disputed evidence are presented in the light
`
`reasonably most favorable to Mr. Benson as the non-moving party with respect to the motion for
`
`summary judgment. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
`
`At all times relevant to this lawsuit, Mr. Benson was confined at Wabash Valley. He was
`
`transferred there on June 29, 2018. Dkt. 32-1, 11:12-14 (Benson Dep.).
`
`Since 2016, Mr. Benson has been found guilty on three different conduct reports for
`
`assaults on Indiana Department of Correction (IDOC) staff. Id., 15:17-16:12. Sanctions for each
`
`of the assaults on staff included time in disciplinary segregation in the SHU. Id., 16:15-17:9. Since
`
`being placed in the SHU at Wabash Valley, Mr. Benson has received five or six additional conduct
`
`reports. Id., 18:6-9. One of the conduct reports Mr. Benson received in the SHU was for threatening
`
`
`
`2
`
`

`

`Case 2:19-cv-00065-JRS-MJD Document 48 Filed 08/04/20 Page 3 of 15 PageID #: 514
`
`IDOC staff. Id., 18:17-25. As of December 5, 2019, Mr. Benson was scheduled to be in disciplinary
`
`segregation until October 16, 2020. Id., 19:11-14.
`
`
`
`1. Temperature in cell
`
`Mr. Benson's cell includes a bed, blankets, pillow, sink, toilet, television, desk, chair, and
`
`a window that looks out into the range. Dkt. 32-1, 35:20-37-5. Mr. Benson's bed is long enough
`
`that he can lie flat with room to spare. Id., 35:20-36:4.
`
`
`
`"[F]or a little while" Mr. Benson's cell "was kind of cold." Id., 28:7-13. During the winter
`
`of 2018-2019, Mr. Benson experienced the most issues with cold temperatures in his cell. Id., at
`
`41. Cold air was coming out of the vent instead of hot air. This issue was remedied by the facility
`
`after approximately one and a half to two months. Id., 42:16-43:10. More than once, Mr. Benson's
`
`hands have gotten cold enough that a nurse has had difficulty getting a pulse or temperature reading
`
`from his finger. Id., 39:4-25.
`
`
`
`Mr. Benson has also experienced a cold cell during the summer because of the air
`
`conditioning. Id., 40:21:41-7. He submitted a request for interview form to the Warden's office on
`
`July 7, 2019, complaining about air circulation on the range. Defendant Brown responded on July
`
`11, 2019, stating parts had been ordered and that the issue would be addressed soon. Dkt. 32-3 at
`
`¶ 4.
`
`
`
`Mr. Benson's cell contains two vents. Dkt. 32-1, 37:6-7. One of the vents in his cell sucks
`
`in air, while the other vent blows air into the cell. Id., 37:12-23. Mr. Benson notices heat come in
`
`and out of his cell. Id, 39:8-10.
`
`
`
`At one point during Mr. Benson's confinement in the SHU, there was a natural gas smell
`
`coming through one of the vents in his cell. Id., 38:3-8. He spoke with a grievance specialist about
`
`the smell and the situation was addressed. Id., 38:13-25.
`
`
`
`3
`
`

`

`Case 2:19-cv-00065-JRS-MJD Document 48 Filed 08/04/20 Page 4 of 15 PageID #: 515
`
`
`
`
`
`2. Clothing
`
`When Mr. Benson was transferred to the SHU, he was issued one jumpsuit, three t-shirts,
`
`three pairs of boxers, three pairs of socks, two towels, and a winter hat. Dkt. 32-1, 43:25-44:8. He
`
`has been provided with slip on shoes. Id., 65:18-66:7. Mr. Benson had previously requested a coat
`
`and was told to contact the property officer. Id., 46:9-18. When he wrote the property officer about
`
`a coat, he did not get a response. Id., 47:6-12. But after talking with Sergeant Busby he received a
`
`coat that day, between the end of September and the end of November 2018. Id., 44:19-46:8. He
`
`can swap out his clothes for new ones every six months or so. Id., 48:11-23.
`
`
`
`Mr. Benson's clothes are laundered twice a week. Id., 49:15-16. Mr. Benson is allowed to
`
`order thermal clothing and gloves from commissary. Id., 28:21- 23; 59:19-60:7.
`
`
`
`
`
`3. Food, Commissary, and Hygiene
`
`Mr. Benson is provided three meals a day. Dkt. 32-1, 34:9-25. He can order commissary
`
`items from the form titled IDOC Disciplinary Form 06E-WVC (Disciplinary Form). Id., 50:6-22;
`
`dkt. 32-2; dkt. 32-3 at ¶ 5. Offenders can order deodorant, toothpaste, nail clippers, toothbrushes,
`
`shampoo, lotion, thermal clothing and gloves using the Disciplinary Form, but they are what Mr.
`
`Benson considers "cheap" or "generic" brands. Dkt. 32-1, 51:13-24; 52:12; 53:17-25; 54:2-4;
`
`59:19-60:7; dkt. 32-2. Offenders in disciplinary segregation are not permitted to order from the
`
`same commissary forms as offenders in administrative segregation as a way to incentivize good
`
`behavior and deter conduct that results in placement in disciplinary segregation. Dkt. 32-3 at ¶ 7.
`
`
`
`Mr. Benson only has access to razors and toenail clippers when he showers. He is permitted
`
`to keep other hygiene items in his cell. Dkt. 32-1, 58:23-59:3. Mr. Benson showers every other
`
`day. Id., 59:4-5.
`
`
`
`
`
`4
`
`

`

`Case 2:19-cv-00065-JRS-MJD Document 48 Filed 08/04/20 Page 5 of 15 PageID #: 516
`
`
`
`
`
`4. Programming
`
`Mr. Benson has been referred to participate in the ACT Program, which helps offenders
`
`transition from segregation units back to general population. Dkt. 32-1, 61:10-21. He is permitted
`
`to attend inside and outside recreation. Id., 66:14-20. He has the option of staying in his cell instead
`
`of attending recreation. Id., 68:4-11.
`
`
`
`
`
`B.
`
`Analysis
`
`Mr. Benson alleges that he is confined in his cell 23 hours a day without the ability to order
`
`certain hygiene, food, shoes, and clothing items from commissary or to participate in educational
`
`or recreational programs because he is in disciplinary segregation. Dkt. 16 at 4; dkt. 32-1 at 31. He
`
`alleges that he has been confined under harsh conditions in a small, poorly ventilated, cold cell.
`
`Id. Mr. Benson has not been afforded the same privileges as offenders in administrative
`
`segregation. Dkt. 16 at 3; dkt. 32-1 at 30-32. He brings his claims under the Eighth Amendment
`
`and the Fourteenth Amendment due process and equal protection clauses. The Court turns to the
`
`Eighth Amendment claims first.
`
`1. Eighth Amendment Claims
`
`
`
`The Eighth Amendment's proscription against cruel and unusual punishment protects
`
`prisoners from the "unnecessary and wanton infliction of pain" by the state. Hudson v. McMillian,
`
`503 U.S. 1, 5 (1992) (citation and internal quotations omitted). Pursuant to the Eighth Amendment,
`
`prison officials have the duty to provide humane conditions of confinement: "prison officials must
`
`ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take
`
`reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825,
`
`832 (1994) (internal quotation omitted). To succeed on a conditions-of-confinement claim under
`
`the Eighth Amendment, a plaintiff must demonstrate that 1) he was incarcerated under conditions
`
`
`
`5
`
`

`

`Case 2:19-cv-00065-JRS-MJD Document 48 Filed 08/04/20 Page 6 of 15 PageID #: 517
`
`that posed a substantial risk of objectively serious harm, and 2) the defendants were deliberately
`
`indifferent to that risk, meaning they were aware of it but ignored it or failed "to take reasonable
`
`measures to abate it." Townsend v. Cooper, 759 F.3d 678, 687 (7th Cir. 2014); Pyles v. Fahim, 771
`
`F.3d 403, 409 (7th Cir. 2014); Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008) (citing cases).
`
`As noted, to satisfy an Eighth Amendment conditions-of-confinement claim, a plaintiff
`
`must establish an objective and subjective component. Giles v. Godinez, 914 F.3d 1040, 1051 (7th
`
`Cir. 2019). The objective showing means "that the conditions are sufficiently serious—i.e., that
`
`they deny the inmate the minimal civilized measure of life's necessities, creating an excessive risk
`
`to the inmate's health and safety." Id. (internal quotation omitted). "According to the Supreme
`
`Court, … 'extreme deprivations are required to make out a conditions-of-confinement claim.'" Id.
`
`(quoting Hudson, 503 U.S. at 9). "If under contemporary standards the conditions cannot be said
`
`to be cruel and unusual, then they are not unconstitutional, and [t]o the extent that such conditions
`
`are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their
`
`offenses against society." Id. (internal quotation omitted). After showing the objective component,
`
`a plaintiff must next establish "a subjective showing of a defendant's culpable state of mind," and
`
`"the state of mind necessary to establish liability is deliberate indifference to the inmate's health
`
`or safety." Id. (internal quotation omitted). Thus, negligence or even gross negligence is not
`
`sufficient to support a § 1983 claim. See Huber v. Anderson, 909 F.3d 201, 208 (7th Cir. 2018).
`
`a.
`
`Commissary
`
`Mr. Benson alleges that he has been denied the ability to order certain hygiene products,
`
`
`
`
`soap, shoes, and clothing from commissary. The first question is whether this "condition" is
`
`sufficiently serious to deny him the minimal civilized measure of life's necessities. Inmates are
`
`entitled to adequate hygiene items and clothing. See Townsend, 759 F.3d at 687 ("life's necessities
`
`
`
`6
`
`

`

`Case 2:19-cv-00065-JRS-MJD Document 48 Filed 08/04/20 Page 7 of 15 PageID #: 518
`
`include shelter, heat, hygiene items and clothing"). The record shows that Mr. Benson is allowed
`
`to order deodorant, toothpaste, shaving cream, soap, nail clippers, toothbrushes, shampoo, lotion,
`
`and thermal clothing using the Disciplinary Form. Dkt. 32-2. To the extent Mr. Benson alleges
`
`that these items are not "sufficient," dkt. 16 at 4, he has presented no evidence to support that
`
`characterization. He has not identified any item he is unable to purchase through commissary,
`
`much less demonstrated that his inability to purchase that item deprives him of a minimal necessity
`
`of civilized life or creates an excessive risk to his health or safety. Although he states that some of
`
`the brands are cheap or generic, no reasonable jury could find that Mr. Benson faces a serious risk
`
`of harm because of what he is or is not able to purchase through commissary.
`
`Even if Mr. Benson could demonstrate the objective component of his claim, which he has
`
`not done, he has not shown that Warden Brown consciously disregarded a known risk to Mr.
`
`Benson's health and safety with regard to commissary options.
`
`b.
`
`Educational and Recreational Programs
`
`Mr. Benson alleges that he has been held in his cell for 23 hours a day and has been denied
`
`access to educational and recreational programs. Dkt. 16 at 4. "The Eighth Amendment, however,
`
`does not compel prison administrators to provide general educational programs for inmates."
`
`Johnson v. Randle, 451 F. App'x 597, 599 (7th Cir. 2011); Zimmerman v. Tribble, 226 F.3d 568,
`
`571 (7th Cir. 2000) ("There is no constitutional mandate to provide educational, rehabilitative, or
`
`vocational programs, in the absence of conditions that give rise to a violation of the Eighth
`
`Amendment.") (internal quotation omitted). Mr. Benson has no constitutional right to participate
`
`in educational programs.
`
`"Lack of exercise may rise to a constitutional violation in extreme and prolonged situations
`
`where movement is denied to the point that the inmate's health is threatened." Antonelli v. Sheahan,
`
`
`
`7
`
`

`

`Case 2:19-cv-00065-JRS-MJD Document 48 Filed 08/04/20 Page 8 of 15 PageID #: 519
`
`81 F.3d 422, 432 (7th Cir. 1996). However, "short-term denials of exercise may be inevitable in
`
`the prison context and are not so detrimental as to constitute a constitutional deprivation." Delaney
`
`v. DeTella, 256 F.3d 679, 683-84 (7th Cir. 2001) (collecting cases). Mr. Benson does not allege
`
`that he cannot exercise in his cell or that he has been denied his recreation time outside. Cf. Turley
`
`v. Rednour, 729 F.3d 645, 652 (7th Cir. 2013) (inmate could state a claim where frequent
`
`lockdowns lasting up to 90 days each prevented all exercise, causing health issues); Delaney, 256
`
`F.3d at 687 ("failure to provide inmates with the opportunity for at least 5 hours of exercise a week
`
`outside the cell raised serious constitutional questions"). No evidence indicates that he has been
`
`denied recreation to the extent that his health has been threatened. Here, Mr. Benson has not
`
`presented evidence sufficient to support either the objective or subjective elements of a deprivation
`
`of exercise claim.
`
`Temperature and Ventilation of Cell
`
`c.
`
`In a sworn affidavit filed in response to the motion for summary judgment, Mr. Benson
`
`states that he was "extremely cold most of the time while I was housed in the SCU from June 29,
`
`2018, until March 25, 2019, when I was finally able to order me a set of thermals top and bottom."
`
`Dkt. 36, ¶ 10. To the extent this testimony conflicts with his deposition testimony, it must be
`
`disregarded unless there is an explanation for the conflict. Abraham v. Washington Grp. Int'l, Inc.,
`
`766 F.3d 735, 741 (7th Cir. 2014) ("a deponent may not use an affidavit sworn to after a deposition
`
`to contradict deposition testimony without giving a credible explanation for the discrepancies.").
`
`At the time he was deposed, Mr. Benson stated that his cell wasn't cold anymore but that when he
`
`filed this action "and for a little while, it was kind of cold." Dkt. 32-1 at 28:10-13. This action was
`
`filed on February 8, 2019. Dkt. 1. He also testified that "in the summer, you've got the cold air
`
`blowing" from the air conditioning, and "then in the winter if the heat ain't working right, it's cold."
`
`
`
`8
`
`

`

`Case 2:19-cv-00065-JRS-MJD Document 48 Filed 08/04/20 Page 9 of 15 PageID #: 520
`
`Id. at 28-29, 41. His deposition testimony continued, "it might get a little cold where if I'm sitting
`
`up trying to do legal work or read or something like that, my hands will be - - you know, get real
`
`cold." Id. at 39. At those times when he went to sick call, the instrument put on his finger to get
`
`his pulse or temperature would not read because his hands were so cold. Id.
`
`
`
`The Court accepts Mr. Benson's assertions that at times, his cell was very cold. If the air
`
`conditioning was blowing too hard, it was cold. In the winter, it could be cold if the heat was not
`
`working well, before he ordered thermal clothing. However, Mr. Benson's affidavit testimony that
`
`he was extremely cold most of the time conflicts with his deposition testimony and cannot be
`
`accepted.
`
`The Seventh Circuit has considered various levels and durations of cold temperatures—
`
`and accommodations for those temperatures—in determining whether a constitutional violation
`
`exists. See Haywood v. Hathaway, 842 F.3d 1026, 1030 (7th Cir. 2016) (Eighth Amendment
`
`would have been violated if inmate had been confined for 60 days in a cell with a broken window
`
`and temperatures below freezing with blowers blowing and guards refusing to provide blankets or
`
`coat). In Mays v. Springborn, 575 F.3d 643, 648 (7th Cir. 2009), the Seventh Circuit held that
`
`allegations of being denied adequate clothing in the winter such that the inmate "suffered from
`
`hurt ears and numb hands, felt frostbite, and caught colds" did "not rise to the level of the
`
`objectively serious harm necessary to show an Eighth Amendment violation." The inmate "did
`
`not show that he was forced to be in the cold for long periods of time or that he suffered anything
`
`more than the usual discomforts of winter." Id.
`
`An inmate's allegations that it was so cold in his cell every winter that "ice formed on the
`
`walls and remained throughout the winter" created material questions of fact of whether the
`
`prison's standard-issued clothing and bedclothing were adequate to combat the cold and whether
`
`
`
`9
`
`

`

`Case 2:19-cv-00065-JRS-MJD Document 48 Filed 08/04/20 Page 10 of 15 PageID #: 521
`
`the defendants knew of the cold and deliberately ignored it. Dixon v. Godinez, 114 F.3d 640 (7th
`
`Cir. 1997); see also Gillis v. Litscher, 468 F.3d 488, 490 (7th Cir. 2006) (allegations that inmate
`
`was forced to sleep naked on concrete floor and had to walk around his cell 14 hours a day to try
`
`to stay warm were severe enough to go to trial).
`
`The Court is aware that "[s]ome conditions of confinement may establish an Eighth
`
`Amendment violation in combination when each would not do so alone, but only when they have
`
`a mutually enforcing effect that produces the deprivation of a single, identifiable human need such
`
`as food, warmth, or exercise—for example, a low cell temperature at night combined with a failure
`
`to issue blankets." Wilson v. Seiter, 501 U.S. 294, 304 (1991). Even accepting as true Mr. Benson's
`
`assertion that during the winter of 2018-2019, he experienced cold temperatures in his cell at times,
`
`his allegations are much less severe that those alleged in the cases cited above. Mr. Benson alleges
`
`that his hands were sometimes too cold to register a temperature or pulse reading from his finger,
`
`but that temporary discomfort does not reach the level of a constitutional violation. See Isby v.
`
`Brown, 856 F.3d 508, 522 (7th Cir. 2017) ("[C]onditions are not unconstitutional simply because
`
`they are harsh and restrictive;
`
`.... [T]he Constitution does not mandate that prisons be
`
`comfortable....") (internal citation and quotation omitted). After this action was filed, in July 2019,
`
`the air conditioning system was temporarily producing air that was too cold, but the Warden
`
`informed Mr. Benson that he was aware of the problem and a part had been ordered. For a period
`
`of less than two months during the winter of 2018-2019, the heating system needed repairs. At this
`
`time, Mr. Benson had clothing, blankets, and a coat. The cold temperatures he faced did not fall
`
`below the minimal civilized measure of life's necessities. Mr. Benson has not presented evidence
`
`sufficient to support the objective component of this claim.
`
`
`
`10
`
`

`

`Case 2:19-cv-00065-JRS-MJD Document 48 Filed 08/04/20 Page 11 of 15 PageID #: 522
`
`Warden Brown is entitled to summary judgment on Mr. Benson's claim that his cell was
`
`too cold.
`
`2.
`
`Fourteenth Amendment Claims1
`
`a.
`
`Equal Protection
`
`Mr. Benson next argues that his equal protection rights have been violated because he does
`
`not receive the same privileges as inmates confined in administrative segregation. "To establish a
`
`prima facie case of discrimination under the equal protection clause, [plaintiff is] required to show
`
`that he is a member of a protected class, that he is otherwise similarly situated to members of the
`
`unprotected class, and that he was treated differently from members of the unprotected class."
`
`Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005) (internal quotation omitted); see also Harvey v.
`
`Town of Merrillville, 649 F.3d 526, 531 (7th Cir. 2011) (same in workplace context). This claim
`
`warrants little discussion because Mr. Benson, as an inmate confined in disciplinary segregation,
`
`is not a member of a protected class. "Where disparate treatment is not based on a suspect class
`
`and does not affect a fundamental right, prison administrators may treat inmates differently as long
`
`
`1 To the extent Mr. Benson now alleges that he was denied due process when certain property
`(lotion, sunglasses, pens, a doo-rag, sweatshirt and sweatpants) was confiscated when he was
`transferred from Miami Correctional Facility to Wabash Valley, dkt. 36 at 6 and dkt. 37-1 at 65,
`this claim was not alleged in his amended complaint and is therefore not part of this action. Dkt.
`16. Even if it had been, it would have been dismissed for failure to state a claim upon which relief
`can be granted because he was not entitled to a hearing. "[A]n adequate state remedy for a
`deprivation of property provides all the due process that a plaintiff suing state officers for such
`deprivation is entitled to." DKCLM, Ltd. v. Cnty. of Milwaukee, 794 F.3d 713, 716 (7th Cir. 2015).
`It is well settled that Indiana law and Indiana's courts provide an adequate remedy to Indiana
`prisoners asserting claims for deprivation of property. See Watkins v. Kasper, 599 F.3d 791, 798
`(7th Cir. 2010) ("To the extent that Watkins relies on the destruction of his personal legal materials,
`his complaint is better characterized as a deprivation of property claim, for which he may seek
`relief at state law."); Wynn v. Southward, 251 F.3d 588, 592–593 (7th Cir. 2001) ("The district
`court properly dismissed Wynn's Fourteenth Amendment claims for deprivation or destruction of
`personal property . . . . Wynn has an adequate post-deprivation remedy in the Indiana Tort Claims
`Act, and no more process was due.").
`
`
`
`
`11
`
`

`

`Case 2:19-cv-00065-JRS-MJD Document 48 Filed 08/04/20 Page 12 of 15 PageID #: 523
`
`as the unequal treatment is rationally related to a legitimate penological interest." Flynn v.
`
`Thatcher, 819 F.3d 990, 991 (7th Cir. 2016).
`
`"Prison classifications are presumed to be rational and will be upheld if any justification
`
`for them can be conceived." Id. "Conferring benefits to those with a history of good behavior
`
`encourages rehabilitation, institutional security, and the safety of inmates, staff, and visitors." Id.
`
`The only evidence in the record on this subject indicates that offenders in disciplinary segregation
`
`are not permitted to order from the same commissary forms as offenders in administrative
`
`segregation as a way to incentivize good behavior and deter conduct that results in placement in
`
`disciplinary segregation. Dkt. 32-3 at ¶ 7. Extending broader privileges to inmates who are not in
`
`disciplinary segregation is rationally related to a legitimate penological interest. No reasonable
`
`jury could find otherwise. Mr. Benson's equal protection claim fails.
`
`b.
`
`Due Process
`
`To the extent Mr. Benson refers to his "due process" rights, he is not challenging his
`
`placement in segregation. Rather, he alleges that certain privileges are being denied without a
`
`hearing. To be entitled to due process, a liberty or property interest must be at stake. Montgomery
`
`v. Anderson, 262 F.3d 641, 644 (7th Cir. 2001) (when no recognized liberty or property interest
`
`has been taken, "the state is free to use any procedures it chooses, or no procedures at all.").
`
`The Warden correctly points to Sandin v. Conner, 515 U.S. 472 (1995), in which the
`
`Supreme Court held that in evaluating whether a liberty interest exists, the Court must ask whether
`
`the conditions impose an "atypical and significant hardship on the inmate in relation to the ordinary
`
`incidents of prison life." Id. at 484. The Warden acknowledges that inmates in disciplinary
`
`segregation have a reduced list of commissary items from which they can purchase. The inability
`
`to order the full range of commissary products does not present an "atypical and significant
`
`
`
`12
`
`

`

`Case 2:19-cv-00065-JRS-MJD Document 48 Filed 08/04/20 Page 13 of 15 PageID #: 524
`
`hardship" on Mr. Benson. See Lekas v. Briley, 405 F.3d 602 (7th Cir. 2005) (generally speaking,
`
`conditions that do not prolong incarceration do not invoke a liberty interest). Mr. Benson is not
`
`denied all hygiene and other products. There is no liberty interest at stake under these
`
`circumstances.
`
`It appears that Mr. Benson is arguing that IDOC Policy 02-04-102, "Disciplinary
`
`Restrictive Status Housing," creates a property interest. Dkt. 37 at 6. He asserts that that policy
`
`provides that after 60 days, disciplinary segregation inmates are entitled to administrative
`
`segregation privileges, including commissary.
`
`P. Limited programs and services shall be provided to the offenders either in their
`living areas or on the unit, based upon the security needs of the facility. Offenders
`held on disciplinary restrictive status housing for periods exceeding sixty (60) days
`are provided the same program services and privileges as inmates in administrative
`restrictive status housing and Protective Custody. Programs and services shall
`include, but are not limited to: educational services, commissary services,
`independent studies, library services, self-help, social services, counseling
`services, religious guidance, and recreational programs. Operational procedures
`shall be developed indicating the programs and services that are available to
`offenders on the unit and the manner in which offenders may access these programs
`and services.
`
`Dkt. 37-1 at 4 (IDOC Disciplinary Restrictive Status Housing Policy, No. 02-04-102) (emphasis
`
`added).
`
`"Unless the regulation limits an official's discretion in denying the benefit to 'objective and
`
`defined' criteria, no protected interest has been created." Campbell v. Miller, 787 F.2d 217, 223
`
`(7th Cir. 1986) (quoting Olim v. Wakinekona, 461 U.S. 238, 249 (1983)). The IDOC policy does
`
`not place substantive limits on the discretion of prison authorities in limiting commissary. Rather,
`
`the policy further states, "Operational procedures shall be developed indicating the programs and
`
`services that are available to offenders on the unit and the manner in which offenders may access
`
`these programs and services." Dkt. 37-1 at 4. This allows for additional decision-making and thus
`
`
`
`13
`
`

`

`Case 2:19-cv-00065-JRS-MJD Document 48 Filed 08/04/20 Page 14 of 15 PageID #: 525
`
`the policy alone does not create a protected property interest. As the Supreme Court is often quoted,
`
`[T]he problems that arise in the day-to-day operation of a corrections facility are
`not susceptible of easy solutions. Prison administrators therefore should be
`accorded wide-ranging deference in the adoption and execution of policies and
`practices that in their judgment are needed to preserve internal order and discipline
`and to maintain institutional security.
`
`
`Bell v. Wolfish, 441 U.S. 520, 547 (1979).
`
`
`Even if this IDOC policy did create a protected property interest, due process would not
`
`require any type of hearing before an inmate is denied access to certain commissary items.
`
`Mr. Benson has not alleged that post-deprivation remedies are inadequate, which defeats his claim.
`
`See Tenny v. Blagojevich, 659 F.3d 578, 583 (7th Cir. 2011) (having an adequate post-deprivation
`
`remedy "dooms [his] constitutional due process claims."); see also Moore v. Pemberton, 110 F.3d
`
`22 (7th Cir. 1997) (temporary loss of ability to buy snacks at commissary did not constitute the
`
`loss of any liberty or property). Warden Brown is entitled to summary judgment on Mr. Benson's
`
`due process claim.
`
`IV. Conclusion
`
`
`
`For the reasons discussed above, the defendant's motion for summary judgment, dkt. [32],
`
`is granted. Judgment consistent with the screening Entry of March 29, 2019, dkt. [8], and this
`
`Entry shall now issue.
`
`IT IS SO ORDERED.
`
`
`
`
`Date: 8/4/2020
`
`
`
`
`
`
`
`
`
`
`14
`
`

`

`Case 2:19-cv-00065-JRS-MJD Document 48 Filed 08/04/20 Page 15 of 15 PageID #: 526
`
`Distribution:
`
`CHARLES A. BENSON
`202702
`WABASH VALLEY - CF
`WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
`Electronic Service Participant – Court Only
`
`All electronically registered counsel
`
`
`
`
`
`
`15
`
`