UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

SHANE KERVIN, )

)

Plaintiff, )

) CAUSE NO. 3:14-CV-379 JM 

v. )

)

SUPERINTENDENT, et al., )

)

Defendants. )

OPINION AND ORDER

Shane Kervin, a pro se prisoner, filed an amended complaint under 42 U.S.C.

§ 1983. (DE # 11.) The court must review the complaint and dismiss it if the action is

frivolous or malicious, fails to state a claim for relief, or seeks monetary relief against a

defendant who is immune from such relief. 28 U.S.C. § 1915A. To survive dismissal, the

complaint must state a claim for relief that is plausible on its face. Bissessur v. Indiana

Univ. Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. at 603. The court

must bear in mind that “a pro se complaint, however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

551 U.S. 89, 94 (2007) (quotation marks and citations omitted). 

This is Kervin’s third attempt to assert his claims. The present pleading (like his

earlier ones) is not a model of clarity, but it can be discerned that he is complaining

about disciplinary proceedings at Miami Correctional Facility (“Miami”) in which he
was found guilty of threatening, disruptive behavior, and possession of an

unauthorized electronic device. As a result of these proceedings Kervin spent time in

disciplinary segregation, temporarily lost phone and commissary privileges, and

ultimately lost his prison job. He sues various prison staff members who were involved

in the proceedings, including the hearing officers, the individuals who decided his

appeals, the assistant superintendent, and the superintendent of the facility. He alleges

numerous “due process” violations by these officials, including that they denied him

evidence, denied him the proper assistance of a lay advocate, mishandled his

administrative appeals, and broke a promise about returning his radio if he agreed to

plead guilty to one of the offenses. He seeks compensatory damages as well as various 1

forms of declaratory relief.

The Fourteenth Amendment Due Process Clause does not protect against every

change in the conditions of confinement having an adverse impact on a prisoner. Sandin

v. Conner, 515 U.S. 472, 484 (1995). Instead, a prisoner is entitled to due process

protections only when the conditions imposed work an atypical and significant

hardship on him in relation to the ordinary incidents of prison life. Id. Temporary

placement in the segregation unit does not present an atypical, significant deprivation

and is “within the expected parameters of the sentence imposed by a court of law.” Id.

at 485. 

An attachment reflects that the radio that was confiscated from Kervin was not returned to him because it 1

bore the IDOC number of another inmate. (DE 11 at 31.)

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Here, the complaint reflects that Kervin spent short periods of time in

segregation (less than 60 days in each instance) as a result of these offenses. (DE # 11 at

39-41.) Under Sandin, Kervin’s short-term assignment to disciplinary segregation did

not give rise to a protectible liberty interest. See, e.g., Marion v. Columbia Corr. Inst., 559

F.3d 693, 698-99 (7th Cir. 2009) (term of segregation less than six months generally does

not trigger liberty interest); Lekas v. Briley, 405 F.3d 602, 608-09 (7th Cir. 2005) (90-day

period in segregation did not trigger liberty interest); Whitford v. Boglino, 63 F.3d 527,

533 (7th Cir. 1995) (sentence of six months in segregation did not trigger a liberty

interest). Nor would the temporary loss of his phone and commissary privileges, or the

loss of his prison job. See Miller v. Dobier, 634 F.3d 412, 414-15 (7th Cir. 2011)

(“Disciplinary measures that do not substantially worsen the conditions of confinement

of a lawfully confined person are not actionable under the due process clause.”); Dewalt

v. Carter, 224 F.3d 607, 618 (7th Cir. 2000) (prisoners have neither liberty nor property

interests in their prison work assignments). Accordingly, his allegations do not state a

plausible due process claim.

Kervin also appears to claim that he was placed in segregation for retaliatory

reasons in violation of his First Amendment rights. “An act taken in retaliation for the

exercise of a constitutionally protected right is actionable even if the act, when taken for

a different reason, would have been proper.” Lekas, 405 F.3d at 614. In other words,

even though Kervin did not have a liberty interest in remaining in the general prison

population, he could not be placed in segregation simply for exercising his First

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Amendment rights. To prevail on a First Amendment retaliation claim, a prisoner must

show that he engaged in activity protected by the First Amendment; he suffered a

deprivation that would likely deter First Amendment activity in the future; and the

First Amendment activity motivated the decision to take retaliatory action. Bridges v.

Gilbert, 557 F.3d 541, 553 (7th Cir. 2009).

Here, Kervin claims that Sergeant Gapski (first name unknown) put him in

segregation because he was angry he had to let Kervin go to a visit from an attorney.2

Kervin is somewhat vague in describing this incident, despite being told to provide as

much detail as possible. He does allege that on the date in question, he hit the intercom

and told Sergeant Gapski that he had a scheduled visit from an attorney. He apparently

wanted to be released from the day room so he could return to his cell and change

clothes for the visit. Sergeant Gapski told him he could not leave the day room at that

time. Kervin responded by pushing the intercom again and telling Sergeant Gapski that

he “had to” let him go. After further discussions Sergeant Gapski eventually let him go,

but later charged him with threatening. 

It is clear from the above that Kervin does not allege he was punished for using

the grievance process or some other type of protected activity. It is also clear that he

was not punished for visiting with an attorney. Rather, he was punished for demanding

to be let out of the day room after Sergeant Gapski told him he could not leave. An

Kervin does not provide any information about why he was meeting with an attorney. He does 2

make clear that he ultimately went to the visit without incident. (DE # 11 at 11.) 

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inmate’s oral complaint about a purely personal matter is not the type of speech

protected by the First Amendment. See McElroy v. Lopac, 403 F.3d 855, 858-59 (7th Cir.

2005); Stanley v. Litscher, 213 F.3d 340, 343 (7th Cir. 2000). Moreover, it is clear from

Kervin’s own description of this incident that he failed to obey a direct order issued by

Sergeant Gapski and attempted to assert authority over the officer. “[I]nmates cannot be

permitted to decide which orders they will obey, and when they will obey them[.]”

Lewis v. Downey, 581 F.3d 467, 476 (7th Cir. 2009). “When an inmate refuses to obey a

proper order, he is attempting to assert his authority over a portion of the institution

and its officials [which] . . . places the staff and other inmates in danger.” Id. Kervin has

not plausibly alleged that he engaged in protected First Amendment activity when he

demanded to be let out of the day room.

Even if Kervin could satisfy the first prong, the attachments show that he

received a written reprimand and lost telephone and commissary privileges for a period

of 30 days as a result of this incident. (DE # 11 at 39.) The court cannot conclude that a

reprimand or a temporary loss of these privileges would cause an ordinary inmate to

forego visits from an attorney in the future. See Bart v. Telford, 677 F.2d 622, 625 (7th Cir.

1982) (“It would trivialize the First Amendment to hold that harassment for exercising

the right of free speech was always actionable no matter how unlikely to deter a person

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of ordinary firmness from that exercise[.]”). Accordingly, his allegations fail to state a

plausible First Amendment claim.3

For these reasons, this action is DISMISSED pursuant to 28 U.S.C. § 1915A.

SO ORDERED.

Date: July 9, 2014

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

Kervin mentions in passing that someone named “Mrs. Dawson” has not been providing him 3

proper medical care. (DE # 11 at 14.) He does not list Mrs. Dawson as a defendant, and even if he did, he

could not raise unrelated claims pertaining to his medical care in a lawsuit pertaining to disciplinary

infractions. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). However, this opinion does not purport to

adjudicate any claim Kervin may have regarding his medical care.

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