Chesser v. Rivas et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. COUNT 19 is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. COUNT 20 is DISMISSED with prejudice for failure to state a claim upon which relief may be granted. The following DEFENDANTS are DISMISSED from this action without prejudice: SMITH, CRUITT, CAPALDO, COLT, and SIMMONS. As to COUNTS 1-18 and 21, the Clerk of Court is DIRECTED to complete, on Plaintiff's behalf, a summons and form USM-285 for service of process on Defendants RIVAS, WALTON, ROAL, CARDONA, KELLY, NEUMANN, ROLOFF, McCLEARY, and WINN; the Clerk shall issue the completed summons. Signed by Judge J. Phil Gilbert on 6/11/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ZACHARY CHESSER, # 76715-083,

)
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Plaintiff,
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vs.
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HENRY RIVAS, JEFFREY WALTON,
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WENDY ROAL, STEVEN CARDONA,
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PAUL KELLY, MILTON NEUMANN,
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ROBERT ROLOFF, McCLEARY,
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WINN, LESLIE SMITH, APRIL CRUITT, )
T. CAPALDO, STEPHEN COLT,
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and J. SIMMONS,
)
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Defendants.
)

Case No. 13-cv-00456-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, who is an inmate in the United States Penitentiary in Marion (“Marion”), brings
this action pro se for alleged violations of his constitutional rights by persons acting under the
color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). He
was previously granted leave to proceed in forma pauperis (Doc. 4). Plaintiff is serving a
twenty-five year sentence for communicating threats, soliciting others to threaten violence, and
providing material support to terrorists. Plaintiff alleges that, during his incarceration in Marion,
Defendants infringed on his rights under the Free Exercise, Establishment, Free Speech, and Free
Association Clauses of the First Amendment, the Equal Protection component of the Fifth
Amendment’s Due Process Clause, and the Religious Freedom Restoration Act (“RFRA”),
42 U.S.C. §§ 2000bb et seq. (Doc. 1, p. 2). In addition, he raises conspiracy and retaliation
claims. Plaintiff seeks compensatory and punitive damages (Doc. 1, pp. 43-44). He also seeks
declaratory and injunctive relief (Doc. 1, pp. 2, 43-44).

Merits Review Pursuant to 28 U.S.C. § 1915A
In the complaint, Plaintiff raises more than twenty1 claims against fourteen defendants.
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the
complaint. The Court must dismiss a complaint, or portion thereof, if the prisoner has raised
claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may
be granted, or that seek monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(b). To avoid dismissal for failure to state a claim, the complaint must
contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
FED. R. CIV. P. 8(a). The Court is obliged to give Plaintiff’s pro se allegations, however
inartfully pleaded, a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (citing Estelle
v. Gamble, 429 U.S. 97, 106 (1976)). There is no heightened pleading requirement for pro se
prisoner civil rights complaints. Thomson v. Washington, 362 F.3d 969, 970-71 (7th Cir. 2004).
However, if a complaint pleads facts that show that a plaintiff does not have a claim, the
complaint should be dismissed “without further ado.” Id. at 970.
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). An action fails to state a claim upon which relief
can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, 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). Although the Court is obligated to accept factual allegations as true,
some factual allegations may be so sketchy or implausible that they fail to provide sufficient
notice of a plaintiff’s claim. See Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011); Brooks v.
1

Plaintiff actually includes more than thirty claims in his complaint. For purposes of this order, the Court
addresses all of these claims as twenty-one distinct counts.
2

Ross, 578 F.3d 574, 581 (7th Cir. 2009). With this standard in mind, the Court will address each
of Plaintiff’s claims, in turn, below.
I.

Religious Claims
Plaintiff alleges that he is housed in Marion’s Communications Management Unit

(“CMU”) (Doc. 1, p. 4). Marion’s CMU is one of two units of its kind2 in the country. It houses
approximately forty inmates who, for one reason or another,3 require monitoring of all incoming
and outgoing communications (Doc. 1, pp. 4-5). The unit is subject to constant audio and video
surveillance (Doc. 1, p. 5). The Federal Bureau of Prisons’ (“BOP”) Counterterrorism Unit
(“CTU”) oversees the CMU. The CTU is responsible for monitoring all communications
entering and leaving the CMUs, coordinating foreign language translation services, and
producing intelligence reports on terrorist inmates.
Plaintiff has been housed in Marion’s CMU since May 2, 2011 (Doc. 1, p. 6). Like most
inmates in Marion’s CMU, Plaintiff is a Muslim (Doc. 1, p. 5). He is “very sincere in his
adherence to his religion” (Doc. 1, p. 6). As for his religious claims, Plaintiff alleges that
Defendants repeatedly violated his rights under the RFRA and the First and Fifth Amendments.
The RFRA prohibits the federal government from imposing a “substantial[] burden [on] a
person’s exercise of religion even if the burden results from a rule of general applicability,”
unless the government demonstrates that the burden “(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000bb-1(a), (b); Cutter v. Wilkinson, 544 U.S. 709, 714-15
(2005). The “RFRA protects more than mandated religious exercises; it protects all religious
exercises, whether compelled by, or central to, religious belief.” Lind v. Warden, Fed. Corr.
2

The Federal Correctional Institution in Terre Haute, Indiana, also houses a CMU.
According to the complaint, this group includes, but is not limited to, inmates who have engaged in
terrorism, sexual predators who persist in their efforts to contact their victims, and inmates who have
attempted to coordinate illegal activities using approved forms of communication (Doc. 1, p. 4).
3

3

Inst., Terre Haute, Ind., 2013 WL 139699 (S.D. Ind. 2013) (Slip Copy).
With regard to the Bivens violations under the First Amendment, Plaintiff asserts
alternative theories of liability, including claims under the Free Exercise, Establishment, Free
Speech, and Free Association Clauses of the First Amendment. In Bivens, the United States
Supreme Court “recognized for the first time an implied private action for damages against
federal officers alleged to have violated a citizen’s constitutional rights.” See Bivens, 403 U.S.
388 (1971); Iqbal, 556 U.S. 662, 675 (2009) (quoting Corr. Serv. Corp. v. Malesko, 534 U.S. 61,
66 (2001)). Implied causes of action are disfavored, however, so the Court has “been reluctant to
extend Bivens liability ‘to any new context or new category of defendants.’” Malesko, 534 U.S.
at 68. While Bivens actions have addressed violations of the equal protection component of the
Fifth Amendment’s Due Process Clause, the United States Supreme Court has not found an
implied damages remedy under the Free Exercise Clause. See Davis v. Passman, 442 U.S. 228
(1979). In fact, the Court “has declined to extend Bivens to a claim sounding in the First
Amendment.” Iqbal, 556 U.S. 662; Bush v. Lucas, 462 U.S. 367 (1983).
With regard to the Fifth Amendment equal protection claims under Bivens, a prisoner
must show that he is treated differently than similarly-situated inmates based upon either a
suspect classification or a fundamental right. Religion is a suspect classification. Plaintiff must
then show that the decision at issue was motivated by intentional or purposeful discrimination.
Prison officials may restrict the religious practices of inmates only if a deprivation is necessary
to further legitimate penological interests. See Iqbal, 556 U.S. at 676-77.
A.

Ban on Arabic

Plaintiff claims that he is obligated for religious reasons to learn the liturgical language of
Islam (Doc. 1, p. 7). Defendant Roal banned the study or teaching of foreign languages in the
CMU for security reasons before her departure from Marion (Doc. 1, p. 8). Pursuant to this ban,
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inmates have been prohibited from purchasing books for use in learning another language. After
Defendant Roal’s departure, the ban against purchasing materials was lifted, but the ban against
teaching foreign languages remained. Despite the broad language of the ban, Defendants Rivas,
Cardona, Roloff, Neumann, and Walton enforced it only against Muslims.
Plaintiff claims that the ban violates his rights under the RFRA (Count 1), the First
Amendment Free Exercise Clause (Count 2), the First Amendment Establishment Clause (Count
3), the First Amendment Free Association Clause (Count 4), and the Equal Protection
Component of the Fifth Amendment Due Process Clause (Count 5) (Doc. 1, pp. 10-12). At this
early stage in litigation, Plaintiff shall be allowed to proceed on Counts 1-5 against Defendants
Roal, Rivas, Cardona, Roloff, Neumann, and Walton.
B.

Ban on Shortened Pants

According to his sincerely held religious beliefs, Plaintiff asserts that it is sinful to wear
pants that extend below his ankles (Doc. 1, p. 13). Islam is the only religion known for this
belief. A BOP policy explicitly prohibits inmates from wearing their pants above their ankles.
At times, the CMU has enforced this ban. At times, it has not. Plaintiff claims that Defendants
Rivas, Roal, Kelly, Neumann, and Roloff have prevented him from practicing this sincerely held
religious belief by enforcing the ban against him (Doc. 1, pp. 13-14). He claims that this ban
violates his rights under the First Amendment Free Exercise Clause (Count 6) (Doc. 1, p. 14).
Plaintiff shall be allowed to proceed on Count 6 against Defendants Rivas, Roal, Kelly,
Neumann, and Roloff.
C.

Imposition of Holiday Meals

Plaintiff sincerely believes that his religion forbids participation in non-Islamic holidays
and festivals (Doc. 1, p. 14). Plaintiff has been placed on a “certified religious diet” because of
his religious dietary requirements. On holidays, CMU inmates who are on the religious diet
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receive a special meal for breakfast, lunch, and dinner. These meals consist of “seemingly better
sounding meals [that] are served on other days to inmates on the religious diet” (Doc. 1, p. 15).
Eating these holiday meals would violate Plaintiff’s sincerely held religious beliefs.
Plaintiff attempted to address this issue with Defendants McCleary and Walton.
Defendant Walton delegated authority to handle the matter to Defendant McCleary. Defendant
McCleary initially agreed to accommodate Plaintiff’s requests by providing the typical religious
meal during one festivity. Thereafter, he stopped. In this lawsuit, Plaintiff claims that he must
“either participate in a Christmas meal or go hungry” (Doc. 1, p. 16). This, he claims, serves
only to promote Christianity.
Plaintiff now asserts claims against Defendants Walton and McCleary based on
violations of the RFRA (Count 7), the First Amendment Free Exercise Clause (Count 8), and the
First Amendment Establishment Clause (Count 9). At this early stage in litigation, Plaintiff has
stated colorable claims against Defendants Walton and McCleary. Accordingly, he shall be
allowed to proceed on Counts 7-9 against them.
D.

Denial of Liturgical Meal

Plaintiff also claims that Defendants McCleary and Roloff denied him a holiday meal that
was consistent with his sincerely held religious beliefs (Doc. 1, p. 18). Plaintiff believes that the
consumption of non-ritually slaughtered land animals violates the laws of his religion. When
requesting a liturgical meal for an Islamic holiday in 2012, Plaintiff “made it very clear that no
contamination between chicken and fish should occur”4 (Doc. 1, p. 19). Defendant McCleary
sent the wrong number of fish-only trays to the CMU. After learning of the error, Defendant
McCleary failed to correct it. On the date of the incident, Defendant Roloff discussed the matter
with Plaintiff and apologized for the oversight. He later denied his involvement.
4

Although adherents of Muslim differ in their opinions about the permissibility of eating the regular meat
of land animals in America, Plaintiff sincerely believes it is not permissible.
6

Defendants McCleary and Roloff’s refusal to provide Plaintiff with a fish-only meal on
the Islamic holiday “severely harmed [Plaintiff’s] religious exercise.” Plaintiff now asserts
claims against both for violations of the First Amendment Free Exercise Clause (Count 10) and
the Fifth Amendment Equal Protection Clause (Count 11). Plaintiff has articulated colorable
claims against Defendants McCleary and Roloff under the First and Fifth Amendments, and he
shall be allowed to proceed on Counts 10-11 against them.
E.

Christmas Bags

Defendants Winn and Walton oversee a program that provides inmates with bags of
special foods and products for free shortly before Christmas each year (Doc. 1, p. 16). Both
inmates and staff refer to the bags as “Christmas bags.” There is no equivalent program during
either of the two major Islamic holidays (Doc. 1, p. 17).
In 2011, Defendant Winn distributed these bags to Muslims, “using the ‘Islamic New
Year’ and the day of ‘Ashurah as justifications for giving Muslims the holiday bags around the
same time as Christmas.’” Plaintiff alleges that “Islamic New Year” is not an Islamic holiday.
Further, Ashurah is a holy day, during which Muslims fast. A “bag of ‘goodies’ distributed for
that day would likely be considered a heresy” (Doc. 1, p. 17). Because Muslims comprise
approximately ten percent of Marion’s total inmate population, a “very significant portion of the
prison’s most religious inmates are being left out of a program” that serves inmates of another
religion (Doc. 1, p. 18).
Plaintiff claims that Defendants Walton and Winn are violating his rights under the First
Amendment Establishment Clause (Count 12). Plaintiff asserts that a similar bag must be
provided during one of Islam’s two holidays, or all holiday bag distributions should cease.
Plaintiff has articulated a colorable First Amendment claim against Defendants Walton and
Winn, and he shall be allowed to proceed on Count 12 against them.
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F.

Contract Imam

Defendants Walton and Roloff are in charge of hiring a contract Imam at Marion (Doc. 1,
pp. 21-22). Marion currently makes only one Islamic contractor available to provide religious
guidance to Muslim inmates (Doc. 1, p. 20). This individual is from an obscure sect, which
subscribes to beliefs that orthodox Muslims consider “heretical and blasphemous.” Plaintiff
considers the Islamic contractor to be “an extreme heretic who cannot be sought for religious
advice or utilized for any religious purpose” (Doc. 1, p. 21). Plaintiff sincerely believes that
having access to a trained religious professional with similar beliefs is an integral part of his
practice (Doc. 1, p. 21). He requests the appointment of any qualified individual with
mainstream beliefs.
Plaintiff maintains that Defendants Walton and Roloff’s failure to provide a qualified
Imam violates Plaintiff’s rights under the RFRA (Count 13) (Doc. 1, p. 22). Plaintiff has
articulated a colorable RFRA claim against Defendants Walton and Roloff and shall be allowed
to proceed on Count 13.
G.

Personal Fasts

Plaintiff’s religion highly recommends fasting, from sunrise to sunset, on certain days
(Doc. 1, p. 22). Defendant Walton has declined to provide Plaintiff with any way of breaking his
fast. Plaintiff must either smuggle food from the chow hall, in order to eat it at the prescribed
times, or buy his own food. The current policy substantially burdens Plaintiff’s sincerely held
religious practice of fasting. Plaintiff claims that Defendant Walton’s policy of not providing
any means of consuming prison food to break these fasts violates Plaintiff’s rights under the
RFRA (Count 14). Plaintiff has articulated a colorable RFRA claim against Defendant Walton,
and he shall be allowed to proceed on Count 14 at this stage.

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II.

Retaliation/Conspiracy Claims
Prisoners have a First Amendment right to free speech. See Jones v. North Carolina

Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977); Martin v. Brewer, 830 F.2d 76, 77 (7th
Cir. 1987). Restrictions on that right will be upheld only if they are “reasonably related to
legitimate penological interests.” See Thornburgh v. Abbott, 490 U.S. 401, 413 (1989) (citing
Turner v. Safley, 482 U.S. 78, 89 (1987)); Massey v. Wheeler, 221 F.3d 1030, 1035 (7th Cir.
2000). Further, prison officials may not retaliate against an inmate for exercising his First
Amendment rights, even if their actions would not independently violate the Constitution. See
Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000); DeWalt v. Carter, 224 F.3d 607, 618
(7th Cir. 2000) (“a prison official may not retaliate against a prisoner because that prisoner filed
a grievance”); Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996) (retaliatory transfer);
Higgason v. Farley, 83 F.3d 807, 810 (7th Cir. 1996) (retaliation for filing lawsuit); Murphy v.
Lane, 833 F.2d 106, 108-09 (7th Cir. 1987) (per curiam) (retaliation for filing suit). “A
complaint states a claim for retaliation when it sets forth ‘a chronology of events from which
retaliation may plausibly be inferred.’” Zimmerman, 226 F.3d at 573 (citation omitted).
A.

Senate Report, Religious Question, & SHU Retaliation

Plaintiff describes in great detail several events giving rise to retaliation claims against
Defendants Rivas, Roal, Neumann, and Cardona (Doc. 1, pp. 24-35). Plaintiff alleges that
Defendants Rivas, Roal, and Neumann placed him in segregation in November 2011 in
retaliation for writing letters to Seamus Hughes, a top counterterrorism advisor to the Senate
Committee on Homeland Security and Governmental Affairs (Count 15) (Doc. 1, pp. 24-29).
Plaintiff claims that Defendants Rivas, Roal, Cardona, and Neumann also placed him in
segregation in May 2012 for drafting an email seeking religious advice (Count 16) (Doc. 1,
pp. 30-33). Finally, Plaintiff claims that in June 2012 Defendants Cardona and Neuumann
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threatened to keep him in segregation and investigate him “forever” if Plaintiff decided to send
an email he drafted documenting the CMU’s practices of prohibiting group prayer (Count 17)
(Doc. 1, pp. 33-34). Plaintiff did not send the email because of the threats. These acts, Plaintiff
claims, violated his First Amendment rights.
Plaintiff previously filed an action in this Court, in which he asserted retaliation claims
against numerous defendants. See Chesser v. Walton et al., Case No. 12-cv-001198 (S.D. Ill.
2012) (“Chesser I”). This action is now pending before the Court. The Court allowed Plaintiff
to proceed on his retaliation claims against Defendants Cardona and Neumann. Plaintiff’s
retaliation claims were dismissed without prejudice as to all other defendants. Plaintiff now
attempts to expand his retaliation claims in this matter, to include additional acts and defendants.
Plaintiff could have filed an amended complaint in Chesser I to accomplish this goal. However,
because his retaliation claims were dismissed without prejudice in Chesser I, the Court will
allow him to proceed on these claims in this case for the time being. Accordingly, Plaintiff shall
be allowed to proceed on Counts 15-17.
B.

Interference With Mail & Emails

Plaintiff claims that Defendants Rivas, Roal, and Neumann interfered with his mail, in
violation of his First Amendment rights (Count 18) (Doc. 1, pp. 26, 41-42). These defendants
tampered with Plaintiff’s mail and even rejected it. Some of this mail was legal in nature and
negatively impacted a child custody case involving Plaintiff’s minor child. Plaintiff claims that
Defendants Rivas, Roal, and Neumann conspired to mislead him about the proper transmission
of legal mail (Doc. 1, p. 42). They opened and read his legal mail, in violation of his First
Amendment rights.
Plaintiff also experienced delays of up to three months on outgoing emails addressing
child custody issues (Count 19) (Doc. 1, p. 36). Emails that Plaintiff sent addressing events in
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the media were often delayed for several weeks. These delays occurred without warning. Based
on their job descriptions, Plaintiff maintains that Defendants Rivas, Smith, Cruitt, Capaldo, Colt,
and Simmons conspired to retaliate against Plaintiff by interfering with and delaying his
communications, in violation of his First Amendment rights.
Plaintiff shall be allowed to proceed on his claims that Defendants Rivas, Roal, and
Neumann interfered with his mail as a retaliation claim (Count 18). Plaintiff shall not be allowed
to proceed on his claim that Defendants Rivas, Smith, Cruitt, Capaldo, Colt, and Simmons
delayed his emails (Count 19). Although the Supreme Court has upheld as constitutional the
censoring of “legal mail” by opening it in the inmate's presence, the inadvertent or negligent
opening of an occasional legal letter is not actionable. See, e.g., Wolff v. McDonnell, 418 U.S.
539, 576-577 (1974); Bryant v. Winston, 750 F. Supp. 733 (E.D. Va. 1990). Similarly, an
occasional delay of emails does not rise to the level of a constitutional violation. This claim shall
be dismissed without prejudice.
Plaintiff has failed to state a conspiracy claim against these defendants for the same
reasons he failed to state a conspiracy claim against the defendants in Chesser I (Count 20).
Under the intracorporate conspiracy doctrine, a conspiracy claim “cannot exist solely between
members of the same entity.” Payton v. Rush Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623,
632 (7th Cir. 1999). Plaintiff has named as defendants members of the same entity, the BOP.
Therefore, the defendants cannot be sued for conspiracy. See id. See also Wright v. Ill. Dep’t of
Children & Family Servs., 40 F.3d 1492, 1508 (7th Cir. 1994).5 Accordingly, Plaintiff’s
conspiracy claims shall be dismissed with prejudice.
In summary, Plaintiff shall be allowed to proceed on Count 18 against Defendants Rivas,
5

While Wright focused on corporate managers, nothing in its reasoning precludes application of this
doctrine to supervisors and subordinates in a government entity, as long as all are working in the entity’s
interest. Id. at 633.
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Roal, and Neumann. Count 19 against Defendants Rivas, Smith, Cruitt, Capaldo, Colt, and
Simmons shall be dismissed without prejudice. Count 20 shall be dismissed with prejudice.
III.

Access to Courts Claim
The Seventh Circuit uses a two-part test to decide if prison administrators have violated

the right of access to the courts. Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir. 2004). First, the
prisoner must show that prison officials failed “to assist in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law.” Jenkins v. Lane, 977 F.2d 266, 268 (7th Cir. 1992)
(quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)). Second, he must be able to show “some
quantum of detriment caused by the challenged conduct of state officials resulting in the
interruption and/or delay of plaintiff’s pending or contemplated litigation.” Alston v. DeBruyn,
13 F.3d 1036, 1041 (7th Cir. 1994); see also Lehn, 364 F. 3d at 868. That means that a detriment
must exist, a detriment resulting from illegal conduct that affects litigation. It does not mean that
any delay is a detriment. Kincaid v. Vail, 969 F.2d 594, 603 (7th Cir. 1992). Regardless of the
length of an alleged delay, a prisoner must show actual substantial prejudice to specific litigation.
Kincaid, 969 F.2d at 603.
To state a claim, a plaintiff must explain “the connection between the alleged denial of
access to legal materials and an inability to pursue a legitimate challenge to a conviction,
sentence, or prison conditions,” Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009) (internal
quotation and citation omitted); accord Guajardo Palma v. Martinson, 622 F.3d 801, 805-06
(7th Cir. 2010). This requires Plaintiff to identify the underlying claim that was lost. See
Christopher v. Harbury, 536 U.S. 403, 416 (2002); Steidl v. Fermon, 494 F.3d 623, 633 (7th Cir.
2007).
Plaintiff claims that he has been denied access to the discovery materials in his criminal
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case since July 2010 (Count 21) (Doc. 1, p. 37). He needs this information for his child custody
case and for his preparation of a petition for writ of habeas corpus. Most of the information is
available in electronic form and on the internet. Although Defendant Neumann initially granted
Plaintiff’s attorneys permission to send a copy of the hard drive containing the discovery to
Plaintiff, Defendant Roal rejected the hard drive after determining that Defendant Neumann had
no authority to grant the request. Defendant Roal later approved the request, but again rejected
the hard drive upon its arrival at the prison because it was not on a compact disc (Doc. 1, p. 38).
When Plaintiff’s attorneys sent the information on fifteen compact discs, Defendant Roal again
rejected the discovery, claiming that it “threatened security” (Doc. 1, p. 38). By denying
Plaintiff access to this information, Defendants Neumann and Roal have prevented Plaintiff from
evaluating or filing a petition for writ of habeas corpus (Doc. 1, pp. 38-39). They have also
infringed on his First Amendment rights by censoring his discovery materials (Doc. 1, p. 39).
Plaintiff has stated a colorable access to courts claim (Count 21) against Defendants Neumann
and Roal, and he shall be allowed to proceed on Count 21 against them.
Disposition
COUNT 19 is DISMISSED without prejudice for failure to state a claim upon which
relief may be granted. COUNT 20 is DISMISSED with prejudice for failure to state a claim
upon which relief may be granted.
The following DEFENDANTS are DISMISSED from this action without prejudice:
SMITH, CRUITT, CAPALDO, COLT, and SIMMONS.
As to COUNTS 1-18 and 21, the Clerk of Court is DIRECTED to complete, on
Plaintiff’s behalf, a summons and form USM-285 for service of process on Defendants RIVAS,
WALTON, ROAL, CARDONA, KELLY, NEUMANN, ROLOFF, McCLEARY, and
WINN; the Clerk shall issue the completed summons. The United States Marshal SHALL serve
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Defendants RIVAS, WALTON, ROAL, CARDONA, KELLY, NEUMANN, ROLOFF,
McCLEARY, and WINN pursuant to Rule 4(e) of the Federal Rules of Civil Procedure. All
costs of service shall be advanced by the United States, and the Clerk shall provide all necessary
materials and copies to the United States Marshals Service.
In addition, pursuant to Federal Rule of Civil Procedure 4(i), the Clerk shall (1)
personally deliver to or send by registered or certified mail addressed to the civil-process clerk at
the office of the United States Attorney for the Southern District of Illinois a copy of the
summons, the complaint, and this Memorandum and Order; and (2) send by registered or
certified mail to the Attorney General of the United States at Washington, D.C., a copy of the
summons, the complaint, and this Memorandum and Order.
It is FURTHER ORDERED that Plaintiff shall serve upon Defendants, or if an
appearance has been entered by counsel, upon that attorney, a copy of every pleading or other
document submitted for consideration by this Court. Plaintiff shall include with the original
paper to be filed a certificate stating the date that a true and correct copy of the document was
mailed to each defendant or counsel. Any paper received by a district judge or a magistrate
judge which has not been filed with the Clerk or which fails to include a certificate of service
will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Philip M. Frazier for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Frazier for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties
consent to such a referral.
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If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that
his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give
security for the same, the applicant and his or her attorney were deemed to have entered into a
stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court,
who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff.
Local Rule 3.1(c)(1).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7
days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: June 11, 2013
s/J. Phil Gilbert
U.S. District Judge

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