Charles Smith v. Kevwe Akpore

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted May 26, 2017 *
Decided May 31, 2017

Before

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 16-3608

CHARLES SMITH, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.

v. No. 15-cv-1017

KEVWE AKPORE, et al., Sara Darrow,
Defendants-Appellees. Judge.

ORDER

Charles Smith filed this lawsuit under 42 U.S.C. § 1983 after his release from
prison. He principally alleges that the former warden, two guards, and a nurse at Hill
Correctional Center in Illinois placed him in segregation without procedural due process
and withheld medical care after a heart attack. The district court granted summary
judgment for the defendants, and Smith appeals. We affirm the judgment because no

*
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 16-3608 Page 2

reasonable jury could find from the evidence that the defendants violated Smith’s
constitutional rights.

There are few disputes about the evidence, virtually all of which came from the
defendants. Smith was incarcerated briefly at Hill. Within a few weeks of arriving, he
wrote the warden, Kevwe Akpore, saying he feared being injured or killed by guards or
other inmates. He explained that guards had been telling inmates he was a “rapist,
alcoholic crackhead, homosexual.” He asked that an investigation be conducted by
persons other than Internal Affairs agents, whom Smith accused of being among his
harassers.

But the warden instead forwarded Smith’s letter to Lieutenant James Carothers,
who questioned Smith about his accusations, including that Lt. Carothers was among
the harassers. Afterward, Lt. Carothers directed that, for Smith’s protection, he be placed
in segregation while an investigation was conducted. Although Smith protested that he
had not committed a disciplinary infraction and should not be moved to segregation, he
remained there for 30 days.

During his third week in segregation, Smith asked to see a mental-health
counselor. Instead, a nurse, Lorna Stokes, responded and interviewed Smith to see if he
should be placed on suicide watch. He was upset, he told Stokes, because a guard had
called him a pervert and other inmates continued to harass him. Stokes reported back to
mental-health staff, who decided that Smith was not a suicide risk. Then four days later,
Smith reported experiencing chest pains and shortness of breath, which he associated
with symptoms of a heart attack. Guards took him to the infirmary, where the same
nurse determined that his blood pressure was slightly elevated at 136 over 112 and his
pulse was 113. She concluded that Smith was having an anxiety attack, not a heart attack,
and within an hour Smith reported feeling better.

Following Smith’s anxiety attack, Nurse Stokes initiated “crisis intervention
procedures,” but Smith refused to speak with her and again asked to see a mental-health
professional. The staff member he wanted to see was unavailable, so Smith was placed in
observational status, meaning that someone checked his cell every 30 minutes. When a
guard later told Smith he was being moved to a different cell for suicide watch, Smith
refused to cooperate and was given a disciplinary ticket for disobeying. The guard
returned the next day and tried again to move Smith, but once more he defied the guard
and received a disciplinary ticket. Two days later, Lt. Carothers told Smith he was being
released from segregation because his allegations of harassment could not be
No. 16-3608 Page 3

substantiated. Smith avers that he signed a release agreeing to return to general
population, but Lt. Carothers says that Smith refused to go to his new housing
assignment, prompting yet another disciplinary ticket.

Smith’s three disciplinary tickets were resolved together. He requested witnesses
only for the first ticket. Smith sought to establish that he wasn’t on suicide watch when
the guard told him he was being moved, but the Adjustment Committee, chaired by
Lieutenant Stephen Damewood, did not call Smith’s witnesses. Smith admitted the three
infractions, and as punishment he was ordered to serve 3½ months of disciplinary
segregation. He also lost recreation and commissary privileges, but his good time was
unaffected. Smith had completed approximately three months of his punishment when
he was released from prison.

Smith’s lawsuit named as defendants Warden Akpore, Lts. Carothers and
Damewood, and Nurse Stokes. Smith claimed that he was denied due process when he
was placed in investigative and disciplinary segregation. He also claimed that
Nurse Stokes was deliberately indifferent to his medical condition. (Smith’s complaint
included other claims, including that the defendants had retaliated because he wrote to
the warden, but his brief on appeal does not make a cogent argument about these
claims.) In granting summary judgment for the defendants, the district court reasoned
that, as a matter of law, Smith was not entitled to any process before he was placed in
segregation. The court further concluded that Smith lacks evidence that the medical care
provided by Stokes was outside the range of accepted professional standards.

Smith first challenges the ruling concerning his placements in segregation. No
process was required, however, unless Smith had a protected liberty interest in
remaining in the general population. See Isby v. Brown, 2017 WL 1905966 at *10 (7th Cir.
May 10, 2017); Lekas v. Briley, 405 F.3d 602, 607 (7th Cir. 2005). Prisoners generally do not
have a liberty interest in avoiding brief periods of segregation, whether administrative
or disciplinary. See Sandin v. Conner, 515 U.S. 472, 483–86 (1995); Kervin v. Barnes, 787 F.3d
833, 837 (7th Cir. 2015); Marion v. Columbia Corr. Inst., 559 F.3d 694, 697–98 (7th Cir. 2009).
Smith’s 30 days in investigative segregation and approximately 3 months in disciplinary
segregation were not long enough to raise a concern under the Due Process Clause.
See Townsend v. Fuchs, 522 F.3d 765, 766, 771–72 (7th Cir. 2008) (no liberty interest
implicated in 59 days’ administrative segregation); Lekas, 405 F.3d at 604–05, 612
(90 days’ segregation at Stateville did not trigger liberty interest); Thomas v. Ramos,
130 F.3d 754, 761–62 (7th Cir. 1997) (no liberty interest in 70 days’ combined
administrative and disciplinary segregation). And since Smith did not have a right to
No. 16-3608 Page 4

procedural due process before being moved to segregation, he could not have suffered a
constitutional deprivation when the Adjustment Committee chairperson did not
summon his requested witnesses. Cf. Wolff v. McDonnell, 418 U.S. 539, 558, 564–66 (1974).

Smith also challenges the grant of summary judgment on his claim that
Nurse Stokes was deliberately indifferent to his need for medical care. This argument is
frivolous. Stokes did treat Smith; she checked his vital signs, evaluated his risk for
suicide after determining that his symptoms signaled a panic attack rather than a heart
attack, and reported back to mental-health professionals who placed him on
observational status. Smith has not alleged that injury resulted from the nurse’s course
of action; indeed, he did not produce any evidence suggesting that she misdiagnosed his
condition. And as the district court observed, Smith has no evidence that Stokes’s
exercise of professional judgment fell outside the range of acceptable standards.
See Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662–63 (7th Cir. 2016).

We have considered the rest of Smith’s arguments, and none merits discussion.

AFFIRMED.