Moorer-Bey v Federal Bureau of Prisons et al

Filing 12

ORDER OF DISMISSAL. Pursuant to 28 U.S.C. § 1915A(b)(1), the claims of Plaintiff Stephan Moorer-Bey against Defendants Federal Bureau of Prisons, Amber Nelson, Richard W. Schott, Thomas Kane, FBOP Associate Director of Programs, Joyce Zoldak, D ennis M. Wong, and Eliezer Ben-Shmuel are DISMISSED with prejudice as frivolous. Moorer-Bey's claims against Defendant Stephen Cope are DISMISSED without prejudice. The dismissal of this case counts as a "strike" for purposes of 28 U.S.C. § 1915(g). The Clerk of Court is directed to enter judgment in accordance with the attached order. Signed by Judge G. Patrick Murphy on 4/22/2012. (jhs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEPHAN
MOORER-BEY, )
BOP REGISTER # 03502-007,
)
)
Plaintiff,
)
)
vs.
)
)
FEDERAL BUREAU OF PRISONS, et al., )
)
Defendants.
)

CIVIL NO. 12-212-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This case comes to the Court on transfer from the United States District Court for the District
of Columbia. Plaintiff Stephan Moorer-Bey, a prisoner in the custody of Defendant Federal Bureau
of Prisons (“BOP”) who currently is incarcerated in the Federal Correctional Institution in
Terre Haute, Indiana, 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. This case is before the Court 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

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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
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, 556 U.S. 662, 678 (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 Moorer-Bey’s operative complaint in this case (Doc. 11), in
August 2009 Moorer-Bey was transferred from the United States Penitentiary in Atwater, California,
to the United States Penitentiary in Terre Haute (“USP Terre Haute”) pursuant to a disciplinary
transfer. The cause of the transfer was that Moorer-Bey had filed Uniform Commercial Code
(“UCC”) financing statements against Defendants Dennis M. Wong and Eliezer Ben-Shmuel, who
are BOP employees. Apparently, Moorer-Bey also had made a request under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552 et seq., for information about five BOP employees,
including Wong and Ben-Shmuel. While Moorer-Bey was waiting to learn whether his FOIA
request had been granted or not, on April 6, 2011, his cell at USP Terre Haute was searched.
According to Moorer-Bey, all of his property was confiscated. Some of the property was returned
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to Moorer-Bey, such as clothing, shoes, commissary items, and religious materials, but Moorer-Bey’s
law books, including various books pertaining to the UCC, and other legal materials were not
returned. Moorer-Bey’s FOIA request was granted, and he was informed that the estimated cost of
the approximately 2,500 pages that would be released to him pursuant to his FOIA request was $256.
On May 10, 2011, Moorer-Bey arranged for the $256 to be paid out of his prison trust account.
On May 12, 2011, Moorer-Bey was placed in the special housing unit at USP Terre Haute for
reclassification. On June 17, 2011, Moorer-Bey was transferred to the United States Penitentiary
in Marion, Illinois (“USP Marion”). Immediately before Moorer-Bey’s transfer to USP Marion,
Moorer-Bey received a disciplinary charge from Defendant Stephen Cope, a guard at
USP Terre Haute, for possession of a person search performed through Intelius, Inc. (“Intelius”), and
two UCC financing statements totaling $8,500,000. At USP Marion, Moorer-Bey also received a
disciplinary charge for possession of contraband, presumably the Intelius person search and the UCC
financing statements.
According to Moorer-Bey, approximately four months after he directed the $256 charge for
his FOIA request to be deducted from his prison trust account, Moorer-Bey cancelled the check he
had written and had the $256 re-credited to his account. Moorer-Bey then directed inquiries about
the status of his FOIA request to Defendant Joyce Zoldak, a BOP employee, but received no
response to his inquiries. Moorer-Bey complains also that Cope wrote him a disciplinary charge for
“[u]se of the telephone for abuses other than illegal intent,” for which Moorer-Bey was convicted.
Doc. 11 at 5. Moorer-Bey’s appeal from the conviction on the disciplinary charge was rejected.
In addition, Moorer-Bey complains that, when he attempted to file the instant lawsuit in the federal
trial court in the District of Columbia, prison officials opened his legal mail outside his presence and
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removed the check Moorer-Bey had written for the filing fee, causing the action to be dismissed.
Moorer-Bey also complains that, when he received the documents he had requested pursuant to
FOIA, they had been substantially and improperly redacted, so that Moorer-Bey in fact received only
thirteen of the promised 2,500 pages of materials.
As an initial matter, the Court notes that BOP is not a proper party to a Bivens action, which
may be brought only against a federal employee in his or her individual capacity, not against the
federal government or its agencies. See FDIC v. Meyer, 510 U.S. 471, 484-86 (1994); Robinson v.
Turner, 15 F.3d 82, 84 (7th Cir. 1994). Also, a Bivens claim is the federal equivalent of an action
brought pursuant to 42 U.S.C. § 1983, and the same legal principles have been held to apply in both
instances. See Green v. Carlson, 581 F.2d 669, 673 (7th Cir. 1978); Paton v. La Prade, 524 F.2d
862, 871 (3d Cir. 1975). Thus, in order to state an actionable Bivens claim, a plaintiff must allege
that a person has deprived him of a federal right, and that the person who caused the deprivation
acted under color of federal law. See West v. Atkins, 487 U.S. 42, 48 (1988); Lojuk v. Quandt, 706
F.2d 1456, 1468 (7th Cir. 1983). Here Moorer-Bey has failed to provide even the most basic of
allegations that Defendants Amber Nelson, Richard W. Schott, Thomas Kane, and FBOP Associate
Director of Programs were personally involved in any deprivation of Moorer-Bey’s constitutional
rights. Assuming that any of these Defendants were involved in a denial of a grievance or other
administrative complaint by Moorer-Bey, this nonetheless does not establish the personal
involvement of these Defendants in any wrongdoing against Moorer-Bey. “Only persons who cause
or participate in the violations are responsible. Ruling against a prisoner on an administrative
complaint does not cause or contribute to the violation. A guard who stands and watches while
another guard beats a prisoner violates the Constitution; a guard who rejects an administrative
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complaint about a completed act of misconduct does not.” George v. Smith, 507 F.3d 605, 609-10
(7th Cir. 2007) (citations omitted).
With respect to Wong and Ben-Shmuel, the only allegation that Moorer-Bey makes against
them is that they supposedly owe him money. If true, this obviously does not amount to a
constitutional claim. As to the shakedown of Moorer-Bey’s cell at USP Terre Haute and the alleged
unlawful confiscation of Moorer-Bey’s property, this is a matter to be taken up with the
United States District Court for the Southern District of Indiana, the forum where, unlike this
Court, jurisdiction and venue is proper as to such a claim. See 28 U.S.C. § 1391(b); 28 U.S.C.
§ 94(b)(2). The Court notes in passing that any due process claim asserted by Moorer-Bey based on
the alleged loss of his law books and legal materials likely is a non-starter. Due process requires the
government to give notice and a hearing, to the extent it is practicable, before a person is finally
deprived of life, liberty or property. See Parratt v. Taylor, 451 U.S. 527, 540-41 (1981), overruled
in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). However, if a person is
subjected to a random and unauthorized deprivation of property by a governmental actor, due process
is satisfied if the government provides an adequate post-deprivation remedy. See Hudson v.
Palmer, 468 U.S. 517, 530-36 (1984). See also Vennes v. Unknown Number of Unidentified
Agents of U.S., 26 F.3d 1448, 1452 (8th Cir. 1994) (noting that an adequate post-deprivation
remedy extinguishes Bivens claims based on unauthorized takings of property by federal actors).
Moorer-Bey has an adequate post-deprivation remedy in the form of a suit for damages under the
Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680. Similarly, if in fact officials at
USP Terre Haute interfered with Moorer-Bey’s access to courts, this too is outside the Court’s venue
and jurisdiction. Also, it is the case that interference with a prisoner’s legal mail by prison officials
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can implicate the prisoner’s First Amendment right of access to the courts. See Kaufman v.
McCaughtry, 419 F.3d 678, 685-86 (7th Cir. 2005); Rowe v. Shake, 196 F.3d 778, 782
(7th Cir. 1999) (citing Lewis v. Casey, 518 U.S. 343 (1996)). However, a prisoner claiming that
prison officials interfered with the right of access to the courts must set out in a complaint the
following: “the identification of the underlying claim that was lost; a description of the ‘official acts
frustrating the litigation’; and the identification of a ‘remedy that may be awarded as recompense but
not otherwise available in some suit that may yet be brought.’” Steidl v. Fermon, 494 F.3d 623, 633
(7th Cir. 2007) (quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)). Here Moorer-Bey does
not allege that he lost a claim due to interference with his right of access to the courts, nor does he
seek a remedy that is otherwise unavailable.
With respect to Cope, it appears that he is employed at USP Terre Haute, in the Southern
District of Indiana, and therefore is outside the jurisdiction or subpoena power of this Court. See
Fed. R. Civ. P. 45(c)(3)(A)(ii); Jaramillo v. DineEquity, Inc., 664 F. Supp. 2d 908, 915
(N.D. Ill. 2009). Also, any Bivens claim by Moorer-Bey against Cope in connection with the
disciplinary charge that Cope wrote against Moorer-Bey for improper use of the telephone is barred
by Heck v. Humphrey, 512 U.S. 477 (1994). Under Heck:
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a . . . plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas corpus[.]
Id. at 486-87 (footnote omitted). The Heck rule extends to Bivens actions and to sentences imposed
for infractions of prison discipline. See Edwards v. Balisok, 520 U.S. 641, 648-49 (1997);

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Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997). Here there is nothing in the complaint to
suggest that Moorer-Bey’s disciplinary sentence has been overturned, and in fact he concedes that
it has been affirmed. Finally, as to any claim Moorer-Bey may be trying to assert for retaliation in
violation of his First Amendment rights, the abusive practice of prisoners filing baseless liens and/or
UCC financing statements for the purpose of harassment and credit impairment of the alleged debtor
(generally a state or federal official involved with securing the prisoner’s incarceration) is well
known to the courts. See, e.g., United States v. Gordon, No. CV205-158, 2005 WL 2237640, at *1
(S.D. Ga. Aug. 25, 2005) (prisoners filed “facially absurd” liens and UCC financing statements
designed to harass and intimidate government officials in the performance of their duties);
United States v. Brum, No. Civ.A. 105CV110, 2005 WL 1606584, at **2-3 (E.D. Tex. July 1, 2005)
(a prisoner filed fraudulent liens and UCC financing statements against the judge and prosecutor
involved in his criminal conviction); United States v. Martin, 356 F. Supp. 2d 621, 623
(W.D. Va. 2005) (a prisoner filed fraudulent UCC financing statements naming himself as the
secured party for a $108,000,000 debt owed him by various government officials).

Such

behavior does not qualify as constitutionally-protected speech and in fact has led to criminal
prosecution of prisoners who engage in this behavior. See, e.g., United States v. Talley, 315
Fed. Appx. 134, 135-36 (11th Cir. 2008) (affirming the conviction of a prisoner for conspiracy to
impede or injure an officer of the United States and endeavoring to influence, intimidate, or impede
an officer of the United States by filing fraudulent creditors’ liens, default notices, and other
fraudulent commercial instruments in an attempt to damage the personal finances of the district
judge and prosecutors involved in the trial on drug and firearm charges for which the prisoner had
been convicted and was serving time).
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Finally, the Court turns to Moorer-Bey’s claim against Zoldak for allegedly failing to respond
to Moorer-Bey’s inquiries about his FOIA request. FOIA serves the “basic purpose of ensuring an
informed citizenry, vital to the functioning of a democratic society.” Bensman v. United States
Forest Serv., 408 F.3d 945, 958 (7th Cir. 2005). Thus, FOIA requires federal agencies to make
information available to the public when requested unless the information falls within one of nine
exemptions. See Enviro Tech Int’l, Inc. v. EPA, 371 F.3d 370, 374 (7th Cir. 2004). FOIA gives
federal courts jurisdiction “to enjoin the agency from withholding agency records and to order the
production of any agency records improperly withheld.” GTE Sylvania, Inc. v. Consumers Union of
U.S., Inc., 445 U.S. 375, 384 (1980) (citing 5 U.S.C. § 552(a)(4)(B)). In general, federal agencies
are the only proper parties in FOIA litigation. See 5 U.S.C. § 552(a)(4)(B); Blanck v. FBI,
No. 07-C-0276, 2007 WL 4561102, at *5 (E.D. Wis. Dec. 21, 2007). Accordingly, FOIA does not
create a cause of action for a suit against an individual employee of a federal agency such as Zoldak.
See Randle v. C.I.R., No. 91 C 5757, 1992 WL 37444, at *2 (N.D. Ill. Feb. 21, 1992) (citing Petrus v.
Bowen, 833 F.2d 581, 582 (5th Cir. 1987)). Most importantly, FOIA creates a comprehensive
remedial scheme that precludes any claim under Bivens or 42 U.S.C. § 1983 for an alleged violation
of FOIA. See Isasi v. Jones, No. 09-5043, 2010 WL 2574034, at *1 (D.C. Cir. June 10, 2010);
Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002); Rodrigues v.
Norwood, No. EDCV 10–629–R (MAN), 2010 WL 2740174, at **5-6 (C.D. Cal. July 9, 2010);
Kroposki

v.

FAA,

Civil

No.

3:08CV01519(AWT),

2009

WL

2710223,

at

*2

(D. Conn. Aug. 26, 2009); Duxbury Trucking, Inc. v. Massachusetts Highway Dep’t,
Civ. Action No. 04cv12118-NG, 2009 WL 1258998, at *6 (D. Mass. Apr. 29, 2009). Accordingly,
Moorer-Bey’s claim against Zoldak is due to be dismissed.
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To conclude, it is it is hereby ORDERED that, pursuant to 28 U.S.C. § 1915A(b)(1),
Moorer-Bey’s claims against BOP, Nelson, Schott, Kane, BOP Associate Director of
Programs, Zoldak, Wong, and Ben-Shmuel are DISMISSED with prejudice as frivolous.
It is further ORDERED that Moorer-Bey’s claim against Cope is DISMISSED without prejudice,
so that Moorer-Bey, if he wishes, may re-file his claims against Cope in the United States District
Court for the Southern District of Indiana. Moorer-Bey is advised that the dismissal of this case
counts as one of his three allotted “strikes” under 28 U.S.C. § 1915(g). See Johnson v. Schoen,
Civil No. 10-113-GPM, 2011 WL 245569, at *1 n.1 (S.D. Ill. Jan. 26, 2011) (a dismissal of a
prisoner’s claim without prejudice pursuant to Section 1915A counts as a “strike”) (collecting cases).
The Clerk of Court shall enter judgment in accordance with this Order.
IT IS SO ORDERED.
DATED: April 22, 2012

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

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