United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON, JUDGE
Suding, a prisoner without a lawyer, filed a complaint
alleging he is being denied admission into the United States
Department of Labor Maintenance Apprentice program at the
Westville Correctional Facility because of an unwritten
policy prohibiting participation by members of Security
Threat Groups. A filing by an unrepresented party “is
to be liberally construed, and 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). Nevertheless, pursuant to 28 U.S.C.
§ 1915A, I must review the merits of a prisoner
complaint and dismiss it if the action is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief.
alleges he was enrolled in the United States Department of
Labor Maintenance Apprentice program when he was housed in
the Correctional Industrial Facility. In February, when he
was transferred to the Westville Correctional Facility, he
applied to enroll in the program, but was not admitted
because he was classified as a member of a Security Treat
Group (STG), also known as a prison gang. Suding argues the
Indiana Department of Correction does not prohibit STG
members from participating, but Westville has its own
unwritten rule. To the extent Suding is arguing the prison is
violating its own rules, that does not state a claim because
“[i]n order to state a claim under [42 U.S.C.] §
1983 a plaintiff must allege . . . defendants deprived him of
a federal constitutional right . . ..” Savory v.
Lyons, 469 F.3d 667, 670 (7th Cir. 2006).
does not argue he was inappropriately classified as an STG
member. Rather, he argues he has a First Amendment right to
join a prison gang. However, “the gang plaintiffs'
contention that they have a right grounded in the First
Amendment to belong to a prison gang is simply too tenuous to
state a claim.” Westefer v. Snyder, 422 F.3d
570, 575 (7th Cir. 2005). “It is beyond dispute that
gangs are incompatible with any penological system and that
they serve to undermine prison security.” Singer v.
Raemisch, 593 F.3d 529, 535 (7th Cir. 2010) (quotation
marks, brackets, and ellipsis omitted). “[P]rison gangs
are a manifest threat to prison order and discipline . . .
there is no federal constitutional impediment to their ban by
prison officials.” Westefer, 422 F.3d at 575.
Therefore, it was not a violation of the First Amendment to
have excluded Suding because he is an STG member.
argues preventing his admission to the Apprentice program
violated the Eighth Amendment. The Eighth Amendment requires
prison officials to “provide humane conditions of
confinement, . . . ensure that inmates receive adequate food,
clothing, shelter, and medical care, and to “take
reasonable measures to guarantee the safety of the
inmates.” Farmer v. Brennan, 511 U.S. 825, 832
(1994) (quotation marks and citations omitted). A prison
official is liable under the Eighth Amendment only if he
“knows of and disregards an excessive risk to inmate
health or safety.” Id. at 837. Conditions of
confinement must be severe to support an Eighth Amendment
claim; “the prison officials' act or omission must
result in the denial of ‘the minimal civilized measure
of life's necessities.” Id. at 834. The
Eighth Amendment only protects prisoners from conditions that
“exceed contemporary bounds of decency of a mature,
civilized society.” Jackson v. Duckworth, 955
F.2d 21, 22 (7th Cir. 1992). In other words, “[a]n
objectively sufficiently serious risk is one that society
considers so grave that to expose any unwilling individual to
it would offend contemporary standards of decency.”
Christopher v. Buss, 384 F.3d 879, 882 (7th Cir.
2004) (quotation marks and citations omitted). Nothing about
denying Suding access to the Apprentice program even comes
close to implicating the Eighth Amendment.
also argues preventing his admission to the Apprentice
program violated the Fourteenth Amendment. The Fourteenth
Amendment provides that State officials shall not
“deprive any person of life, liberty, or property,
without due process of law . . ..” However, a criminal
conviction provides due process for the loss of liberty
caused by the incarceration of a prisoner. So in the prison
context, the Fourteenth Amendment only requires additional
due process when punishment extends the duration of
confinement or imposes “an atypical and significant
hardship on him in relation to the ordinary incidents of
prison life.” Sandin v. Conner, 515 U.S. 472,
484 (1995). “After Sandin, it is clear that
the touchstone of the inquiry into the existence of a
protected, state-created liberty interest in avoiding
restrictive conditions of confinement is not the language of
regulations regarding those conditions but the nature of
those conditions themselves in relation to the ordinary
incidents of prison life.” Wilkinson v.
Austin, 545 U.S. 209, 223 (2005) (quotation marks and
citation omitted). In the ordinary incidents of prison life
“[t]here 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.” Zimmerman v. Tribble, 226
F.3d 568, 571 (7th Cir. 2000) (internal quotation omitted).
As explained, there is no Eighth Amendment violation here.
Consequently, “the denial of access to educational
programs does not infringe on a protected liberty
interest.” Id. See also Soule v. Potts, 676
Fed.Appx. 585, 586 (7th Cir. 2017) (affirming dismissal of
complaint at screening because a “job reassignment does
not impose ‘atypical and significant hardship' on
him relative to the ‘ordinary incidents of prison
life.'”) (citation omitted).
Suding cites to four statutes as a basis for his claim.
However, none of them are applicable here. The first is a
criminal statute, 18 U.S.C. 241, but it does not create a
private right of action because, “the Supreme Court has
been unwilling to treat criminal laws as implying private
entitlements . . ..” Chapa v. Adams, 168 F.3d
1036, 1038 (7th Cir. 1999). “[C]riminal prosecution is
an executive function within the exclusive prerogative of the
Attorney General.” United States v. Palumbo
Bros., 145 F.3d 850, 865 (7th Cir. 1998) (quotation
marks and citation omitted). Suding also cites to 18 U.S.C.
§§ 1985, 1986, and 1988. Because none of those
citations exist in Title 18 of the United States Code, it
appears he intended to cite to 42 U.S.C. §§ 1985,
1986, and 1988 which do exist and seem related to the claim
he is trying to present. Section 1985 “prohibits a
conspiracy . . . motivated by racial, or other class-based
discriminatory animus.” Smith v. Gomez, 550
F.3d 613, 617 (7th Cir. 2008). Section 1986 makes liable
those who have the knowledge and ability to stop a conspiracy
under § 1985. Section 1988 provides attorney fees for
the successful prosecution of §§ 1983, 1985, and
1986 claims. Here, Suding makes the conclusory allegation of
a conspiracy, but does not allege racial animus. Though he
does allege he is being denied access to the Apprentice
program because he is a prison gang member, the status of a
prisoner is not considered a suspect class for equal
protection purposes. Gillis v. Pollard, 554
Fed.Appx. 502 (7th Cir. 2014) and Johnson v. Daley,
339 F.3d 582, 585-86 (7th Cir. 2003) (en banc)
(“Prisoners are not a suspect class . . ..”).
Neither are gang members. Cf. Id. and
Westefer, 422 F.3d at 575 (prison gang membership is
not protected by the First Amendment).
it is usually necessary “to give pro se litigants one
opportunity to amend after dismissing a complaint[, ]
that's unnecessary where, as here, it is certain from the
face of the complaint that any amendment would be futile or
otherwise unwarranted.” Carpenter v. PNC Bank, Nat.
Ass'n, 633 Fed.Appx. 346, 348 (7th Cir. Feb. 3,
2016) (quotation marks omitted); Luevano v.
Wal-Mart, 722 F.3d 1014 (7th Cir. 2013); Hukic v.
Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009)
(“[C]ourts have broad discretion to deny leave to amend
where . . . the amendment would be futile.”). As
explained, Suding has no claim based on not being admitted to
the United States Department of Labor Maintenance Apprentice
program at the Westville Correctional Facility and there does
not appear to be facts he could possibly add which would
state a claim.
these reasons, this case is DISMISSED pursuant to 28 U.S.C.
§ 1915A ...