# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted April 12, 2018 *

Decided April 12, 2018

Before

JOEL M. FLAUM, Circuit Judge

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 17-2580

ANDRE WINSTON, Plaintiff-Appellant

,

v

.

GREGG SCOTT, et al., Defendants-Appellees

. Appeal from the United States District Court

for the Central District of Illinois.

No. 4:17-cv-04159

Harold A. Baker,
J udge

.

O R D E R

This appeal presents us with another encounter with “merit-review hearings.” These are hearings that some district judges hold at the onset of a case to question a pro se plaintiff about a complaint in order to determine its legal sufficiency. We have ruled that these hearings “may be conducted only for the narrow purpose” of allowing

* The appellees were not served with process in the district court and are not participating in this appeal. We have agreed to decide this case without oral argument because the appellant’s brief and the record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. See F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 17-2580 Page 2

a plaintiff to “clarify and amplify his compla int,” and not “to cross-examine” or “elicit

admissions.” See Hughes v. Farris , 809 F.3d 330, 334–35 (7th Cir. 2015). Andre Winston, a civil detainee, appeals the dismissal after on e of these hearings of his civil-rights suit against staff members of the Rushville Tr eatment and Detention Facility. Because Winston’s complaint states a claim that th e defendants denied him constitutionally adequate care for his mental health, and th e district judge improperly conducted the hearing, we vacate the judgment and remand for further proceedings.

Winston’s complaint raises two main concerns. The first is a due-process claim. He challenges a disciplinary ticket that charged him with sexual misconduct and insolence. A staff member charged that Wins ton, while having an erection, thrust his hips in her direction and said “look at these cookies.” A disciplinary officer found Winston guilty of insolence and, Winston asserts, punished him with a loss of “all tasks” for 90 days; the charge of sexual misconduct was dropped. Winston insists that he did not receive due process and his behavior was inoffensive.

Winston’s second concern is about the treatment of his mental health. He complains that staff at Rushville exhibite d deliberate indifference when they denied his requests for a single-occupancy cell to avoid harm from his roommate. Other detainees, including his roommate, “bully” him because of his “mental disabilities” and

“attack” him for his Christian faith. And acco rding to Winston, the “irrational hostility”

he receives from his roommate causes him significant “psychological harm,” preventing him from sleeping more than two or three hours per night. Winston attached to his complaint grievances in which he raised these concerns with Rushville staff, to no avail.

The district judge dismissed Winston’s complaint after a merit-review hearing. The hearing, conducted by telephone, lasted three minutes. At its start, the judge summarized Winston’s complaint: “[Y]ou thrust your erect penis at one of the female employees, and now you have to share a room with another resident and so forth.” The judge then let Winston briefly describ e his due-process claim. When Winston finished, the judge asked if that claim was th e “main problem.” As soon as Winston said “correct,” the judge abruptly ended the he aring. He gave this explanation:

“Okay. All Right. Now, that—that’s all I needed to know...[T]his is a frivolous lawsuit. We’re going to dismiss it...We’ll give him a strike. It’s exactly the kind of case that we have no, no jurisdiction over. There’s no

statement of a—of a federal constituti onal violation. That concludes the hearing.”No. 17-2580 Page 3

The transcript of the hearing ends with Wi nston pleading “You didn’t even let me finish, Your Honor.” Later the judge issued a written order dismissing the case. The order states that “Plaintiff’s complaint fails to state a claim for federal relief.” Acknowledging Winston’s two claims, the orde r also adds that “[P]laintiff cannot bring unrelated claims against different defendants in the same lawsuit.”

On appeal Winston first reiterates his co ntention that the di scipline violated his right to due process, but the district judg e rightly dismissed that claim. Punishments that do not lengthen or “s ubstantially worsen the conditions of confinement of a lawfully confined person are not acti onable under the due process clause.” Miller v.

Dobier , 634 F.3d 412, 414–15 (7th Cir. 2011) (citing Sandin v. Conner , 515 U.S. 472, 485–87 (1995)). Winston alleges that he was punish ed with 90 days of restriction from all “tasks.” We assume that by “tasks” Winsto n means privileges, but he has no claim because a civil detainee’s loss of privileges is not a deprivation of a protected liberty interest; thus due process is not at play. See id. (applying Sandin to claim involving civil detainee and concluding that loss of privilege s did not trigger due-process protections).

But we agree with Winston that the district judge erred in dismissing his second

claim—that the defendants denied him consti tutionally adequate care for his mental health when they denied his requests fo r a single-occupancy cell. Winston stated a federal claim when he alleged that Rushville staff ignored the psychological harm that

Winston’s roommate inflicts on him. See Hughes , 809 F.3d at 334; Smith v. Sangamon Cty. Sheriff's Dept ., 715 F.3d 188, 191 (7th Cir. 2013); Rice ex rel. Rice v. Corr. Med. Serv

., 675 F.3d 650, 668–69 (7th Cir. 2012). The judge di d not allow Winston to amplify this claim at the hearing. Instead, after cutting off Winston before he could say anything about it, the judge wrote that he was dismissi ng this claim because it was unrelated to his first claim. The judge quoted George v. Smith , 507 F.3d 605, 607 (7th Cir. 2007), for the uncontroversial proposition that “Unrelated claims against different defendants belong in different suits.” But “[m]isjoinder of partie s is not a ground for dismissing an action.”

F ED

. R. C IV

. P. 21. Rather, when a district judge determ ines that a plaintiff has misjoined parties, the judge should severe the complain t into multiple suits or dismiss the excess

defendants. See id. ; Wheeler v. Wexford Health Sources, Inc ., 689 F.3d 680, 683 (7th Cir. 2012); Owens v. Hinsley , 635 F.3d 950, 952 (7th Cir. 2011). Because the district court properly dismissed the due-process claim, only the medical-treatment claim remains,

and thus we need not decide whether the two cl aims belonged in separate suits initially.No. 17-2580 Page 4

The judgment dismissing Winston’s la wsuit is VACATED, and the case is
REMANDED. Given this outcome, Winston did not incur a strike for filing this suit.

See 28 U.S.C. § 1915(g); Turley v. Gaetz , 625 F.3d 1005, 1012 (7th Cir. 2010).