William K. Zimmerman v. MARGARITA TRIBBLE, CRAIG HANKS and EDWARD L. COHN

In the
United States Court of Appeals
For the Seventh Circuit
No. 98-2163
WILLIAM K. ZIMMERMAN,
Plaintiff-Appellant,
v.
MARGARITA TRIBBLE, CRAIG HANKS
and EDWARD L. COHN,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 97 C 1778--David F. Hamilton, Judge.
Argued June 1, 2000--Decided August 16, 2000
Before Bauer, Easterbrook and Manion, Circuit Judges.
Bauer, Circuit Judge. William K. Zimmerman
complains about the conditions at the Wabash
Valley Correctional Center. In a pro se civil
rights action against Indiana prison officials,
he alleges violations of his First, Sixth,
Eighth, and Fourteenth Amendment rights. The
District Court, pursuant to the Prison Litigation
Reform Act of 1996, dismissed Zimmerman’s second
amended complaint, finding that it failed to
state a claim upon which relief could be granted.
Zimmerman appeals. We affirm in part and reverse
in part.
I. BACKGROUND
Over his protests and appeals, on July 9, 1997,
William Zimmerman was transferred from the
Pendleton Correctional Facility to the Wabash
Valley Correctional Facility. He was upset over
the transfer because, at Pendleton, he was able
to, and did, participate in vocational training
and substance abuse programs. Had he successfully
completed those programs Zimmerman would have
earned good time credits and, perhaps, an early
release from prison. Those programs are not
offered at Wabash Valley and he believes that the
loss of the opportunity to earn good time credits
violates his Fourteenth Amendment right to due

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process.
Immediately upon his arrival at Wabash Valley,
Zimmerman found that not only was he not going to
get to participate in programs that could gain
his early release, he also was not going to get
as much time in the library as he desired.
Zimmerman was representing himself in a felony
criminal trial and had a firm trial date of
August 4, 1997. He notified Margarita Tribble,
the law library supervisor, of his pro se status
and approaching trial date and requested access
to the law library to prepare for the trial.
Zimmerman claims that Tribble denied him
access./1 As a result, he says he was forced to
relinquish his pro se status and accept a court-
appointed lawyer. After he complained about
Tribble’s conduct and filed official grievances
within the prison system, Tribble supposedly
refused to give him any time in the law library.
Styling this as retaliation for his complaints
about her, Zimmerman alleges that Tribble (and
the other defendants who oversee Tribble)
violated his First Amendment rights.
Adding to his woes, some of the mail that
Zimmerman’s fiancee sent to him was delayed in
reaching him, deliberately, he claims. His
fiancee acted as his "certified agent" in helping
him prepare for trial. She gathered evidence and
other documents and mailed them to him in
envelopes marked "legal mail." On one occasion,
according to the Complaint, an envelope was
mailed by his fiancee on November 7, 1997, but
was not received by him until December 1, 1997.
He claims this delay forced him to file a
pleading without the benefit of those documents
and, as a result, his pleading was summarily
denied. He argues that this delay in the delivery
of his mail violates his First Amendment rights.
Zimmerman sued Tribble, Craig Hanks (the
Superintendent at Wabash Valley), and Edward Cohn
(the Indiana Department of Corrections
Commissioner), claiming that while acting under
color of state law each one violated his
constitutional rights, giving rise to a cause of
action under 42 U.S.C. sec.1983. The District
Court dismissed his claims under the Prison
Litigation Reform Act of 1996. 28 U.S.C.
sec.1915A. That statute requires the court to
screen the civil complaints of all prisoners who
sue a government entity, officer, or employee and
requires the court to dismiss any complaint that
is "(1) frivolous, malicious, or fails to state
a claim upon which relief may be granted; or (2)
seeks monetary relief from a defendant who is
immune from such relief." 28 U.S.C. sec.1915A(b).
The District Court found that Zimmerman’s Second
Amended Complaint did not state a claim for

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relief.
II. DISCUSSION
Our review of a sec.1915A dismissal for failure
to state a claim upon which relief may be granted
is plenary. Sanders v. Sheahan, 198 F.3d 626 (7th
Cir. 1999). We review under the same de novo
standard as if it were an ordinary dismissal
under Rule 12(b)(6), taking all well-pleaded
allegations of the complaint as true and viewing
them in the light most favorable to the
plaintiff. Id. See also Ledford v. Sullivan, 105
F.3d 354, 356 (7th Cir. 1997). We will affirm the
District Court’s dismissal only when "it appears
beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would
entitle him to relief." Casteel v. Pieschek, 3
F.3d 1050, 1056 (7th Cir. 1993).
A. Transfer To Wabash Valley Correctional
Facility
Zimmerman wants to participate in vocational
training and substance abuse programs, knowing
that if he does and successfully completes the
programs he earns good time credits. At
Pendleton, he was participating in those
programs. At Wabash Valley, he is not, because
the programs are not offered. He thus protests
his transfer, arguing that because he is now
unable to participate in educational and
rehabilitative programs, the transfer deprived
him of a liberty interest.
"There 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."
Garza v. Miller, 688 F.2d 480, 486 (7th Cir.
1982). Although the Constitution guarantees no
right to credit time for good behavior or
educational programs, the State may create such
a liberty interest. Wolff v. McDonnell, 418 U.S.
539, 557 (1974). Zimmerman argues that Indiana
has done just that, created a liberty interest
under Indiana Code sec.35-50-6-3.3, which grants
an inmate credit time for successfully completing
various educational programs. We have already
reviewed and rejected this identical claim.
In Higgason v. Farley, 83 F.3d 807, 809 (7th
Cir. 1996), we held that the denial of access to
educational programs does not infringe on a
protected liberty interest. The plaintiff, like
Zimmerman, claimed a liberty interest under
Indiana Code sec.35-50-6-3.3. Relying on Supreme
Court precedent, we soundly rejected that
position. If "the State’s action will inevitably

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affect the duration of the sentence, there is due
process protection, but there is no such
protection for action that merely might affect
the duration of the sentence." Id., citing Sandin
v. Conner, 515 U.S. 472, 487 (1995) (internal
quotation marks omitted). We concluded that even
if Higgason had been given the opportunity, "it
was not inevitable that he would complete an
educational program and earn good time credits."
Id. Thus, we found there was no due process
violation.
Higgason is a case that is on all fours with
the case before us. We believe it is controlling
and mandates that Zimmerman’s claim be dismissed.
Zimmerman, however, suggests that a different
result is necessary because he alleged in his
Second Amended Complaint that he "would" receive
good time credits if allowed to participate in an
educational program. He wishes that the use of
the word "would" would transform his case from
one of uncertainty to one of certainty, thus
taking him out of the ambit of Higgason. We do
not think so. As we found in Higgason, the
successful completion of a program is not
inevitable. Thus, denying him the opportunity to
earn good time credits does not "inevitably
affect the duration of the sentence," and does
not deprive him of constitutional guarantees. The
fact that he pleaded that he "would" have
received credit time is merely a legal conclusion
devoid of supporting factual allegations and does
withstand a motion to dismiss. Strauss v. City of
Chicago, 760 F.2d 765, 767 (7th Cir. 1985).
Recently, in an analogous situation, we
reaffirmed the principles underlying Higgason. In
Stanley v. Litscher, 213 F.3d 340 (7th Cir. 2000),
we analyzed a prisoner’s right to participate in
a program for sex offenders and similarly
concluded that there was no liberty interest in
the participation of such programs. The
plaintiff, a psychopath, desired to participate
in a program, believing that it would "give him
a boost when seeking parole or work release and
reduce the chance that he will be civilly
committed at the end of his criminal sentence."
Id. at 342. We rejected his constitutional
claims, holding that admission to the program was
not a liberty interest. "No fixed set of criteria
entitles anyone to admission, and exclusion
leaves the prisoner with the normal attributes of
confinement." Id. (citations omitted).
As the District Court noted, "the transfer of
an inmate to less amenable and more restrictive
quarters for non-punitive reasons is well within
the terms of confinement ordinarily contemplated
by a prison sentence." Hewitt v. Helms, 459 U.S.
460, 468 (1983). There is nothing in his Second

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Amended Complaint that suggests that Zimmerman is
deprived of the basic human needs to which he is
entitled. He complains only of the deprivation of
the opportunity to earn good time credits. Such
a deprivation is not a constitutional violation.
The District Court therefore correctly dismissed
his claim for violation of the Due Process Clause
of the Fourteenth Amendment.
B. Untimely Delivery of Mail
Zimmerman complains that Wabash Valley is also
violating his First Amendment rights by
delivering his mail in an untimely manner. The
free-speech clause of the First Amendment applies
to communications between an inmate and an
outsider, Martin v. Brewer, 830 F.2d 76, 77 (7th
Cir. 1987), and if Zimmerman alleges a continuing
pattern or repeated occurrences of such conduct
he has a valid claim for a First Amendment
violation. Sizemore v. Williford, 829 F.2d 608,
609 (7th Cir. 1987). The allegations in his Second
Amended Complaint, however, do not measure up to
that standard and we therefore find that he has
failed to state a claim upon which relief can be
granted and affirm the District Court’s dismissal
of this claim.
Zimmerman details in his Second Amended
Complaint only one instance in which his mail was
delayed. He claims that on November 7, 1997, his
fiancee sent an envelope to him that was not
received by him until December 1, 1997./2
Accepting this allegation as true, as we must for
purposes of our review, the most that Zimmerman
alleges is an isolated incident of mail that was
untimely delivered. His attempt to bolster that
allegation with an assertion that there was a
"routine practice of not processing incoming
offender mail in a timely manner," without any
supporting factual allegations, is simply is not
enough. Allegations of sporadic and short-term
delays in receiving mail are insufficient to
state a cause of action grounded upon the First
Amendment. See e.g., Rowe v. Shake, 196 F.3d 778,
782 (7th Cir. 1999); Sizemore, 829 F.2d at 610.
Zimmerman’s claim, then, was properly dismissed.
C. Retaliatory Denial Of Access To The Law
Library
Invoking the First Amendment, Zimmerman contends
that Tribble retaliated against him for
complaining about his lack of access to the law
library. Prisoners have a right of access to the
courts to give them a reasonably adequate
opportunity to present their claims. Bounds v.
Smith, 430 U.S. 817, 825 (1977). Such access must

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be "adequate, effective and meaningful." Id. at
822. Zimmerman did not, as the District Court
correctly concluded, state a claim for denial of
access to the library. But, otherwise permissible
conduct can become impermissible when done for
retaliatory reasons. Cain v. Lane, 857 F.2d 1139,
1145 (7th Cir. 1988) (otherwise constitutional
procedures of prison disciplinary committee could
be invalidated by allegation of retaliation);
Murphy v. Lane, 833 F.2d 106, 108-09 (7th Cir.
1987) (district court reversed for dismissing
complaint challenging otherwise permissible
prison transfer because of sufficient allegation
of retaliation). We express no opinion as to its
ultimate result, but we believe that Zimmerman
can state a claim for retaliation against Tribble
and, therefore, reverse and remand that count for
further proceedings.
A complaint states a claim for retaliation when
it sets forth "a chronology of events from which
retaliation may plausibly be inferred." Cain, 857
F.2d at n.6. Here, Zimmerman alleges that upon
his arrival at Wabash Valley, he notified
Tribble, the law library supervisor, of his pro
se status and firm trial date of August 4, 1997.
Tribble "repeatedly" denied him access to the
library facilities, causing Zimmerman to become
upset and file prison grievances against her.
After those grievances were filed, Tribble
retaliated by denying Zimmerman access to the law
library. This is the chronology alleged by
Zimmerman. Although we would wish for more
detail,/3 we find that the chronology alleges
the bare minimum necessary to survive a dismissal
under sec.1915A.
In Babcock v. White, 102 F.3d 267, 275-76 (7th
Cir. 1996), the plaintiff alleged that the
defendant’s action in delaying the plaintiff’s
transfer to another prison was "in retaliation
for plaintiff’s use of the ’inmate grievance
system’ and previous lawsuits against B.O.P.
officials." We held this to be sufficient to
survive a motion for summary judgment. We
believed that summary judgment was inappropriate
based upon the record because "[i]f believed, the
claim that McDaniel prevented an expeditious
transfer in order to retaliate against Babcock
for exercising his constitutional rights would
entitle Babcock to damages." Id. at 275.
Zimmerman’s Second Amended Complaint does not
merely assert the "legal conclusion" of
retaliation, as the District Court here
suggested. The complaint states enough factual
allegations to arguably present a colorable claim
of retaliation and it alleges that the exercise
of his right was closely followed by the
retaliatory act. See Harris v. Fleming, 839 F.2d

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1232, 1238 (7th Cir. 1988) (District Court may
appropriately consider timing between protected
action and alleged retaliatory act). Given this,
we reverse the judgment of the District Court
dismissing Zimmerman’s claim for retaliation
against Tribble and remand it to the District
Court for further proceedings consistent with
this opinion.
D. Claims Against Hanks and Cohn
Zimmerman also alleges claims against Hanks and
Cohn. These claims are predicted upon the
doctrine of respondeat superior. However,
sec.1983 does not allow actions against
individuals merely for their supervisory role of
others. "An individual cannot be held liable in
a sec.1983 action unless he caused or
participated in [the] alleged constitutional
deprivation." Starzenski v. City of Elkhart, 87
F.3d 872, 879 (7th Cir. 1996), quoting Wolf-Lillie
v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983).
Although Zimmerman alleges that Hanks and Cohn
oversaw others or established wrongful policies,
there are no allegations that either of them was
personally involved in the constitutional
wrongdoing. Therefore, the claims against them
were properly dismissed. Rowe, 196 F.3d at n2.
III. CONCLUSION
For the foregoing reasons, the judgment of the
District Court is affirmed in part and reversed
and remanded in part.
AFFIRMED IN PART AND
REVERSED AND REMANDED IN PART.
/1 His Second Amended Complaint alleges that he was
denied access. However, during oral argument, his
allegation was changed to limited access.
/2 Zimmerman attempts to portray the envelope as
"legal mail" because it contained documents
intended for use at his criminal trial. He
mistakenly believes that if he labels his fiancee
as his "certified agent" that will garner the
envelope protected legal status. He is wrong.
Merely labeling his fiancee his "certified agent"
does not create a privilege akin to the attorney-
client privilege. We hold that no privilege
exists for the envelope and refuse to consider
Zimmerman’s allegation that the opening of this
document resulted in further constitutional
violations.
/3 More detail was provided at oral argument.
Counsel for Zimmerman explained that Zimmerman

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was originally given three hours per week in the
library. However, once he complained about
Tribble’s refusal to grant him all of the time he
desired, she cut his library time down to zero
hours, totally denying him access.

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