# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 26, 2013 *

Decided December 2, 2013

Before

WILLIAM J. BAUER, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 13

‐ 1749

JESSICA WALKER,

Plaintiff

‐ Appellant,

v.

CHARLES E. SAMUELS, JR., et al.

, Defendants

‐ Appellees

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 12

‐ cv

‐ 1296

‐ GPM

G. Patrick Murphy,

Judge

.

O R D E R

Jessica Walker, a federal prisoner, brought suit under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics

, 403 U.S. 388 (1971), against administrators of

the Federal Bureau of Prisons and the Federal Correctional Institute in Greenville,

Illinois. Walker alleges that they violated her equal protection and Eighth Amendment NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* The appellees were not served with process in the district court and are not

participating in this appeal. After examining the appellant ʹ s brief and the record, we

have concluded that the case is appropriate for summary disposition. See F ED

. R. A PP

.

P. 34(a)(2).No. 13

‐ 1749 Page 2

rights by refusing her access to a drug

‐ treatment program at another facility. The

district court screened her complaint, see 28 U.S.C. § 1915A, and dismissed the suit for

failure to state a claim. Because that assessment was correct, we affirm.

In 2010 Walker pleaded guilty to a drug

‐ conspiracy charge and was sentenced to

60 months’ imprisonment. Given Walker’s history of substance abuse as well as her

diagnosis of depression and an unspecified learning disability, the sentencing judge

recommended that she participate in a substance

‐ abuse program. She was placed at

Greenville to participate in that facility’s residential drug

‐ abuse program. But she had

difficulty comprehending its lessons, Walker says, because of her learning disability.

She therefore requested, but was denied, a transfer to a facility in Texas with a “dual

diagnosis” program for inmates suffering from both substance

‐ abuse and mental

‐ health

problems. Administrators explained to her that she had consistently demonstrated a

lack of motivation (by missing several appointments with staff as well as her tutor) in

her rehabilitation. Walker was eventually expelled from the Greenville program.

In response she sued prison administrators, contending that their refusal to

transfer her deprived her of equal protection because another inmate with the “same

diagnosis” of both substance

‐ abuse and mental

‐ health issues was transferred to the

Texas facility. She also alleged an Eighth Amendment violation based on the

embarrassment she suffered during her struggles in the Greenville program and the

belittling comments made by guards about her learning disability. On screening the

complaint, the district court concluded that Walker failed to state an equal protection

claim because she did not allege that the defendants discriminated against her based on

her membership in an identifiable group. In dismissing Walker’s Eighth Amendment

claim, the district court reasoned that the embarrassment and struggles she identified

did not rise to the level of cruel and unusual punishment.

On appeal Walker first maintains that she states an equal protection claim. She

argues that other inmates (she has added a second one in her appellate brief) also had a

dual diagnosis, but unlike her they were transferred to the Texas facility’s “dual

diagnosis” program. Because Walker has not alleged that prison administrators

discriminated against her based on her membership in a group, we have considered

whether she can proceed under a “class of one” theory of equal protection. That theory

applies if “she has been intentionally treated differently from others similarly situated

and

... there is no rational basis for the difference in treatment.” Village of Willowbrook v.

Olech

, 528 U.S. 562, 564 (2000). But even at the pleading stage, a plaintiff must anticipate

the burden of eliminating “any reasonably conceivable state of facts that could provide

a rational basis” for the government’s actions, Srail v. Village of Lisle, Ill.

, 588 F.3d 940,No. 13

‐ 1749 Page 3

946 (7th Cir. 2009) (internal citation and quotation marks omitted). Likewise, she must

provide a sufficiently plausible basis to overcome the applicable presumption of

rationality. See D.B. ex rel. Kurtis B. v. Kopp

, 725 F.3d 681, 686 (7th Cir. 2013); Flying J Inc.

v. City of New Haven

, 549 F.3d 538, 546–47 (7th Cir. 2008). She has not done so. Her

conclusory allegation that other inmates with a dual diagnosis were transferred to the

Texas program does not eliminate the reasonably conceivable possibility that these

inmates suffered from more treatable mental

‐ health issues or displayed greater

commitment to their rehabilitation, thereby justifying their transfer. Accordingly, the

district court properly dismissed the equal protection claim.

Walker next contends that the district court erred by dismissing her Eighth

Amendment claim. She reiterates that because she was not transferred to a facility with

a “dual diagnosis” program, her learning disability left her struggling to understand the

drug

‐ treatment program available to her. She also repeats that as a result, she became

frustrated and embarrassed, feelings that the guards compounded with their belittling

comments about her disability. But to succeed on this claim, these deprivations had to

amount to “the denial of the minimal civilized measure of life’s necessities.” Farmer v.

Brennan

, 511 U.S. 825, 834 (1994) (internal citation and quotation marks omitted);

see Townsend v. Fuchs

, 522 F.3d 765, 773 (7th Cir. 2008). As the district court correctly

concluded, they did not. Under the “life’s necessities” standard, prison administrators

were not required even to provide the rehabilitation programs that Walker seeks. See

Rhodes v. Chapman

, 452 U.S. 337, 348 (1981); Zimmerman v. Tribble

, 226 F.3d 568, 571 (7th

Cir. 2000). And feelings of embarrassment, even when emanating from a guard’s

comments about Walker that are harassing and offensive, do not constitute cruel and

unusual punishment actionable under the Eighth Amendment. See DeWalt v. Carter

, 224

F.3d 607, 612 (7th Cir. 2000). 1

Walker advances (for the first time on appeal) several other statutory theories of

relief, including principally that the decision not to transfer her constituted disability

discrimination in violation of the Rehabilitation Act, 29 U.S.C. § 794. But Walker is

1 As an alternative ground for dismissing Walker ʹ s Eighth Amendment claim, the

district court relied on 42 U.S.C. § 1997e(e), but this was incorrect. Because Walker did

not allege any physical injury, § 1997e(e) prevents her from recovering compensatory

damages on her Eighth Amendment claim, but this provision does not bar the claim

entirely; a plaintiff alleging no physical injuries from a constitutional violation may still

seek and recover nominal or punitive damages. See Thomas v. Illinois

, 697 F.3d 612, 614

(7th Cir. 2012); Smith v. Peters

, 631 F.3d 418, 421 (7th Cir. 2011).No. 13

‐ 1749 Page 4

pursuing damages against governmental employees, and statutes such as the

Rehabilitation Act do not provide a damages remedy against them. Id. § 794(b); Jaros v.

Ill. Dep’t of Corrs.

, 684 F.3d 667, 670 (7th Cir. 2012).

We have considered Walker’s remaining contentions and all are without merit.

AFFIRMED.