Neal v. Cross et al

Filing 20

ORDER DISMISSING CASE. Pursuant to 28 U.S.C. § 1915A(b)(1), this action is DISMISSED with prejudice as frivolous. Plaintiff Cedrick Neal is advised that the dismissal of this case counts as a "strike" within the meaning of 28 U.S.C. § 1915(g). The Clerk of Court will enter judgment in accordance with the attached order. Signed by Judge G. Patrick Murphy on 4/3/2012. (jhs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CEDRICK NEAL, BOP # 04221-025,
Plaintiff,
vs.
JAMES N. CROSS, et al.,
Defendants.

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CIVIL NO. 11-1021-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff Cedrick Neal, a prisoner in the custody of the Federal Bureau of Prisons who
currently is incarcerated in the Federal Correctional Institution in Greenville, Illinois
(“FCI Greenville”), brings this action pro se pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), for alleged deprivations of his constitutional
rights by persons acting under color of federal law. Neal’s complaint is before the Court for
screening pursuant to 28 U.S.C. § 1915A, which provides, in relevant part:
(a) Screening. – The court shall review, before docketing, if feasible or, in any event,
as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal. – On review, the court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the complaint –
(1) is frivolous, malicious, or fails to state a claim upon which relief may
be granted[.]
28 U.S.C. § 1915A. An action or claim is frivolous if “it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which
relief may be granted if it does not plead “enough facts to state a claim to relief that is plausible on
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its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is plausible on its face
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
Though a court must accept a plaintiff’s factual allegations as true, “some factual allegations will
be so sketchy or implausible that they fail to provide sufficient notice to defendants of the plaintiff’s
claim.”

Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).

Also, courts “should not

accept as adequate abstract recitations of the elements of a cause of action or conclusory legal
statements.” Id. The factual allegations of a pro se complaint must be liberally construed.
See Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006) (citing Haines v. Kerner, 404 U.S.
519, 520 (1972)).
According to the allegations of Neal’s pro se complaint, on or about February 7, 2011, a visit
between Neal and his wife at FCI Greenville was cut short by the prison guard in charge of the
visiting room at the time, ostensibly because Neal touched his wife’s shoulder, in violation of a
prison regulation that prohibits contact between prisoners and visitors except at the beginning and
the end of a visit. According to Neal, who is Muslim, shortly before Neal’s visit with his wife was
terminated, Defendant G. Jones, a guard at FCI Greenville, whispered to the officer in charge of the
visiting rom that “Muslims think they own the world.” Doc. 1 at 3. Named as Defendants in
addition to Jones are James N. Cross, the warden of FCI Greenville, and G. Cooper, a guard at
FCI Greenville. Neal alleges a violation of his First Amendment right of free exercise of his religion,
as well as violations of his due process right under the Fifth Amendment, his right to be free of cruel
and unusual punishment under the Eighth Amendment, and his right of equal protection of the laws
under the Fourteenth Amendment.
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As an initial matter, the Court notes that Neal’s complaint is devoid of allegations
concerning Cross and Cooper. “Bivens actions are simply the federal counterpart to [42 U.S.C.]
§ 1983 claims brought against state officials[.]” Snargrass v. United States Bureau of Prisons,
Civil No. 11-662-GPM, 2012 WL 187766, at *2 n.2 (S.D. Ill. Jan. 23, 2012) (quoting Egervary v.
Young, 366 F.3d 238, 246 (3d Cir. 2004)). It is well settled that Section 1983 “creates a cause of
action based on personal liability and predicated upon fault; thus, liability does not attach unless the
individual defendant caused or participated in a constitutional deprivation.”

Sheik-Abdi v.

McClellan, 37 F.3d 1240, 1248 (7th Cir. 1994) (citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869
(7th Cir. 1983)). Accordingly, a Section 1983 plaintiff must make allegations that “associate specific
defendants with specific claims . . . so [the] defendants are put on notice of the
claims brought against them and so they can properly answer the complaint.” Willis v. Hulick,
Civil No. 09-cv-447-JPG, 2010 WL 358836, at *2 (S.D. Ill. Jan. 25, 2010) (citing Hoskins v.
Poelstra, 320 F.3d 761, 764 (7th Cir. 2003)). Said differently, a Section 1983 plaintiff “cannot state
a claim against a defendant [merely] by including the defendant’s name in the caption” of a
complaint.

Allen v. Feinerman, Civil No. 07-cv-805-MJR, 2009 WL 90118, at *2

(S.D. Ill. Jan. 14, 2009) (quoting Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998)). Neal has
failed to state a claim against Cross and Cooper.1

1.
To the extent that Neal’s claim against Cross is based upon the latter’s denial of Neal’s
grievances and administrative complaints, there is, of course, a constitutional right to address
complaints to state officials. See Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir. 2009). However,
the right to petition for redress of grievances “does not require that a government official respond
to the grievance.” Jones v. Brown, 300 F. Supp. 2d 674, 679 (N.D. Ind. 2003). Also, “a citizen’s
right to petition the government does not guarantee . . . the right to compel government
officials to . . . adopt a citizen’s views.” Webb v. Randle, Civil No. 10-470-GPM, 2011 WL 678815,
at *4 (S.D. Ill. Feb. 16, 2011) (quoting Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999))
(brackets omitted). The United States Court of Appeals for the Seventh Circuit specifically has held
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At most, the allegations of Neal’s complaint show that Jones made a derogatory comment
about Muslims, which is not grounds for a constitutional claim. See Antoine v. Uchtman, 275
Fed. Appx. 539, 541 (7th Cir. 2008) (noting that “the Constitution does not compel guards to address
prisoners in a civil tone using polite language.”); DeWalt v. Carter, 224 F.3d 607, 612
(7th Cir. 2000) (“Standing alone, simple verbal harassment does not constitute cruel and unusual
punishment, deprive a prisoner of a protected liberty interest or deny a prisoner equal protection of
the laws.”) (collecting cases); Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir. 1987) (“Defamation
is not a deprivation of liberty within the meaning of the due process clause.”).
Nonetheless, in the interest of completeness, the Court will address each of Neal’s constitutional
claims in turn. The Court turns first to Neal’s claim for a violation of his right of free exercise of
his religion. It is well settled that “[t]he fact of confinement and the needs of the penal institution
impose limitations on constitutional rights, including those derived from the First Amendment,
which are implicit in incarceration.” Jones v. North Carolina Prisoners’ Labor Union, Inc., 433
U.S. 119, 125 (1977). A prisoner is entitled to practice his or her religion as long as the practice
does not unduly burden the institution. See Richards v. White, 957 F.2d 471, 474 (7th Cir. 1992).
A prisoner’s right to exercise his or her religious beliefs must be balanced against the legitimate

that a denial of a prisoner’s grievance, even if wrongful, is not a basis for a claim under 42 U.S.C.
§ 1983. “Only persons who cause or participate in the violations [of a prisoner’s constitutional
rights] are responsible [under Section 1983]. Ruling against a prisoner on an administrative
complaint does not cause or contribute to the violation.” George v. Smith, 507 F.3d 605, 609
(7th Cir. 2007) (citations omitted). Thus, “[a] guard who stands and watches while another guard
beats a prisoner violates the Constitution; a guard who rejects an administrative complaint about a
completed act of misconduct does not.” Id. at 609-10. Here Neal is merely challenging the rejection
of his administrative complaint or complaints about completed acts of alleged misconduct by guards
at FCI Greenville, which does not rise to the level of a violation of Neal’s constitutional rights.
Therefore, Neal’s claim against Cross will be dismissed.
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goals of the institution. See Hadi v. Horn, 830 F.2d 779, 783 (7th Cir. 1987). To constitute a
violation of the First Amendment, the government must place a substantial burden on the
observation of a central religious belief or practice. See Wisconsin v. Yoder, 406 U .S. 205, 220-21
(1972). If a plaintiff is successful at crossing this hurdle, the government must then show that a
compelling interest justifies the burden. See id. Prison regulations alleged to infringe constitutional
rights are judged under a “reasonableness” test less restrictive than that ordinarily applied to alleged
infringements of fundamental constitutional rights. See O’Lone v. Estate of Shabazz, 482 U.S.
342, 349 (1987). Accordingly, restrictions that infringe upon a prisoner’s exercise of religion will
be upheld if they are reasonably related to a legitimate penological interest. See id. Relevant factors
include: (1) whether a valid, rational connection exists between the regulation and a legitimate
government interest; (2) whether there are other means of exercising the right in question for
prisoners; (3) the impact accommodating the claimed right would have on guards, other inmates, and
prison resources; and (4) the availability of obvious and easy alternatives to the regulation. See
Turner v. Safley, 482 U.S. 78, 89-90 (1987). Legitimate penological demands include security and
economic concerns. See Al-Alamin v. Gramley, 926 F.2d 680, 686 (7th Cir. 1991). A prisoner bears
the burden to disprove the legitimacy of a prison regulation or policy that impinges on the prisoner’s
constitutional rights. See Woods v. Commissioner of Ind. Dep’t of Corr., 652 F.3d 745, 748
(7th Cir. 2011). Moreover, “the problems that arise in the day-to-day operation of a corrections
facility are not susceptible of easy solutions. Prison administrators therefore should be accorded
wide-ranging deference in the adoption and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to maintain institutional security.” Bell v.
Wolfish, 441 U.S. 520, 547 (1979).
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In this case, the challenged conduct, terminating Neal’s visit with his wife by reason of a
prison regulation allowing only limited contact between a prisoner at FCI Greenville and a visitor
at the beginning and the end of a visit, clearly does not violate Neal’s religious freedom. Neal can
still pray and participate in his chosen religious activities and services: he merely cannot touch his
wife while a visit with her is ongoing. Moreover, the regulation prohibiting contact between
prisoners at FCI Greenville and visitors while visits are ongoing is rationally related to concerns for
the safety and security of the institution. The object of the regulation restricting contact between
prisoners and visitors at FCI Greenville obviously is to limit opportunities for prisoners and visitors
to exchange contraband. In sum, Neal’s claim for a violation of his right of free exercise of his
religion fails.2 The Court turns, then, to Neal’s remaining constitutional claims. Concerning
Neal’s claim for a violation of his Fifth Amendment right of due process, in general a prisoner has
a liberty interest that is protected by due process only where prison conditions
impose atypical and significant hardship on the prisoner in relation to the ordinary incidents of

2. To the extent Neal is attempting to claim that he was retaliated against for being a Muslim, this
claim fails as well. According to the allegations of Neal’s complaint, Jones, the prison guard who
is alleged to have said that “Muslims think they own the world,” was not the decision-maker
responsible for terminating Neal’s visit with his wife. The decision-maker appears instead to have
been a guard named Brown, who is not named as a Defendant in this case. Given the complete
absence of any allegations in Neal’s complaint showing that Brown acted from a retaliatory motive,
combined with the fact that Neal’s visit with his wife was terminated pursuant to a valid prison
regulation, it is impossible for Neal to show that unlawful retaliation was the “but-for” cause of the
adverse action taken against him, that is, the termination of Neal’s visit with his wife. See Gross v.
FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009) (to prevail in an action under the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., “[a] plaintiff must prove by a
preponderance of the evidence (which may be direct or circumstantial), that [an unlawful motive]
was the ‘but-for’ cause of the challenged . . . decision.”); Waters v. City of Chicago, 580 F.3d
575, 584 (7th Cir. 2009) (“[T]he decisions which say that a plaintiff need only prove that his speech
was a motivating factor in the defendant’s decision [to retaliate] do not survive Gross[.]”)
(emphasis in original).
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prison life. See Sandin v. Conner, 515 U.S. 472, 484 (1995); Crowder v. True, 74 F.3d 812, 814
(7th Cir. 1996).3 Typically, prisoners have no independent constitutional right to visitation or to
particular forms of visitation, including contact visitation. See Kentucky Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460 (1989) (“Respondents do not argue – nor can it seriously be
contended, in light of our prior cases – that an inmate’s interest in unfettered visitation is guaranteed
directly by the Due Process Clause [of the Fourteenth Amendment].”); Lynott v. Henderson, 610
F.2d 340, 342 (5th Cir. 1980) (“Convicted prisoners have no absolute constitutional right to
visitation.”). Thus, prison officials have considerable discretion in determining the time, place,
duration, and conditions of visitation. See Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999) (stating
that “for convicted prisoners visitation privileges are a matter subject to the discretion of prison
officials.”) (quotation and brackets omitted); Peterson v. Shanks, 149 F.3d 1140, 1145
(10th Cir. 1998) (citing Kentucky Dep’t of Corr., 490 U.S. at 460) (“[T]he Supreme Court has held
that inmates have no right to unfettered visitation. Rather, prison officials necessarily enjoy broad
discretion in controlling visitor access to a prisoner[.]”). The restriction placed on Neal’s visit with
his wife falls within the discretion the Constitution affords to prison officials, does not work an
atypical and significant hardship on Neal in relation to the ordinary incidents of prison life, and is
“within the expected parameters of the sentence imposed by a court of law.” Sandin, 515 U.S.
at 485. Thus, Neal’s Fifth Amendment due process claim fails.

3.
The Court is aware, of course, that Sandin involved the right of due process under the
Fourteenth Amendment, which is not binding on federal actors. See San Francisco Arts & Athletics,
Inc. v. United States Olympic Comm., 483 U.S. 522, 542 n.21 (1987). However, the interpretation
of due process under both the Fifth Amendment and the Fourteenth Amendment is substantially
identical. See, e.g., Bowles v. Willingham, 321 U.S. 503, 518 (1944) (noting that “the restraints
imposed on the national government . . . by the Fifth Amendment are no greater than those imposed
on the States by the Fourteenth.”).
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With respect to Neal’s Eighth Amendment claim, “withdrawal of visitation privileges for a
limited period as a regular means of effecting prison discipline. This is not a dramatic departure
from accepted standards for conditions of confinement.” Overton v. Bazzetta, 539 U.S. 126, 137
(2003). Also, a prison regulation limiting visitation does not “create inhumane prison conditions,
deprive inmates of basic necessities, or fail to protect their health or safety. Nor does it involve the
infliction of pain or injury, or deliberate indifference to the risk that it might occur.” Id. “If the
withdrawal of all visitation privileges were permanent or for a much longer period, or if it were
applied in an arbitrary manner to a particular inmate, the case would present different
considerations.” Id. However, “[a]n individual claim based on indefinite withdrawal of visitation
or denial of procedural safeguards” does not support a finding that a prison regulation limiting
visitation violates the Eighth Amendment. Id. Finally, as to Neal’s equal protection claim, unlike
the Fourteenth Amendment, the Fifth Amendment does not contain an equal protection clause, but
the Fifth Amendment’s due process clause does contain an equal protection component applicable
to the federal government that is essentially the same as the equal protection guarantee under the
Fourteenth Amendment. See Harris v. McRae, 448 U.S. 297, 322 (1980); Bolling v. Sharpe, 347
U.S. 497, 499-500 (1954). “To state an equal protection claim, a . . . plaintiff must allege that [an
official] purposefully discriminated against him because of his identification with a particular
(presumably historically disadvantaged) group.” Sherwin Manor Nursing Ctr., Inc. v. McAuliffe, 37
F.3d 1216, 1220 (7th Cir. 1994). Ordinarily, prisoners do not constitute a suspect class and thus
official actions concerning prisoners as a group are generally not entitled to heightened scrutiny. See
Pryor v. Brennan, 914 F.2d 921, 923 (7th Cir. 1990). Where the circumstances of a case do not
involve a suspect classification such as race or gender, a prisoner who challenges a particular prison
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regulation must show or indicate that the regulation is not reasonably related to a legitimate
governmental concern, or must demonstrate that the challenged regulation is an exaggerated response
to that concern.

See Turner, 482 U.S. at 89-90; Caldwell v. Miller, 790 F.2d 589, 609

(7th Cir. 1986). Likewise, while equal protection requires prisoners to be treated equally, a prison
regulation that treats prisoners unequally will be upheld if it is reasonable in light of legitimate
penological interests. See May v. Sheahan, 226 F.3d 876, 882 (7th Cir. 2000). The rational basis
justifying an enactment against an equal protection claim need not be stated in the enactment; it is
sufficient that a court can conceive of a reasonable justification for the challenged enactment. See
McDonald v. Board of Election Comm’rs of Chicago, 394 U.S. 802, 809 (1969). Put another way,
“[t]he burden is on the one attacking the [enactment] to negate every conceivable basis which might
support it.” Estate of Kunze v. C.I.R., 233 F.3d 948, 954 (7th Cir. 2000). In this instance, the
challenged prison regulation applies equally to all prisoners at FCI Greenville and has a legitimate
penological purpose, namely, to limit opportunities for prisoners at FCI Greenville and their visitors
to exchange contraband. “[L]imitations on the exercise of constitutional rights arise both from the
fact of incarceration and from valid penological objectives – including deterrence of crime,
rehabilitation of prisoners, and institutional security.” O’Lone, 482 U.S. at 348. See also Johnson v.
McCann, No. 08 C 4684, 2010 WL 2104640, at *8 (N.D. Ill. May 21, 2010) (a prison policy
requiring all new prisoners to receive haircuts, including prisoners whose religious beliefs
required them to wear dreadlocks, did not violate equal protection where the policy was applied in
a non-discriminatory manner to all prisoners and served a legitimate penological purpose of
preventing prisoners from hiding contraband in their hair). Neal has failed to state a claim for a
violation of his right of equal protection.
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To conclude, pursuant to 28 U.S.C. § 1915A, the Court finds that Neal’s complaint is
frivolous. Therefore, this action is DISMISSED with prejudice. Neal is advised that the dismissal
of this case will count as one of his three allotted “strikes” under 28 U.S.C. § 1915(g).
The Clerk of Court will enter judgment in accordance with this Order.
IT IS SO ORDERED.
DATED: April 3, 2012

/s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

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