Gregory v. Chamness et al

Filing 11

ORDER denying 9 MOTION for Bond filed by Johnny Brett Gregory, 6 MOTION Request to Deem This Case "Complex" re 5 Objection filed by Johnny Brett Gregory. IT IS FURTHER ORDERED that COUNTS 1 and 6 are DISMISSED with prejudic e. IT IS FURTHER ORDERED that COUNTS 2, 3, 4, and 5 are DISMISSED without prejudice and with leave to amend. On or before December 27, 2013, Plaintiff shall file an amended complaint stating a colorable constitutional claim, or this action will be dismissed with prejudice. (Amended Pleadings due by 12/27/2013) FloridaUCC Inc terminated. Signed by Judge Michael J. Reagan on 12/2/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHNNY BRETT GREGORY,
No. 57012-019, and
FLORIDA UCC, INC.,

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Plaintiffs,
vs.
TONY CHAMNESS,
JEFF BANEY,
WEASEL BRADLEY,
WENDY J. ROAL,
AMBER L. NELSON,
HARRELL WATTS, and
HARRY LAPPIN,
Defendants.

Case No. 13-cv-01124-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff Johnny Brett Gregory is an inmate in the custody of the U.S. Bureau of
Prisons, housed at the Englewood Federal Correctional Institution in Littleton, Colorado.
Plaintiff filed this civil rights complaint pursuant to Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971), regarding incidents that occurred while he was housed at the U.S. Penitentiary
in Marion, Illinois. Gregory also brings suit on behalf of “Florida UCC, Inc.”
This case is now before the Court for a preliminary review of the complaint
pursuant to 28 U.S.C. § 1915A, which provides:
(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.

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(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 on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
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).

The claim of

entitlement to relief must cross “the line between possibility and plausibility.

Id. at 557.

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, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual
allegations may be so sketchy or implausible that they fail to provide sufficient notice of a
plaintiff’s claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts
“should not accept as adequate abstract recitations of the elements of a cause of action or
conclusory legal statements.” Id. At the same time, however, the factual allegations of a pro se
complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 821 (7th Cir. 2009).
The Complaint
According to the complaint, in 2009, while Plaintiff was incarcerated at the
Federal Correctional Institution in Jesup, Georgia, he lodged a civil rights action against various
state officials and, under the Uniform Commercial Code (“UCC”), Plaintiff filed a lien and

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financing statement encumbering their property. Approximately one month later, Planitiff was
transferred to USP-Marion.

Marion officials placed Plaintiff in the Special Housing Unit

pending an investigation regarding whether Plaintiff violated prison regulations by filing the
UCC lien and financing statement. Plaintiff filed suit. Prison officials subsequently found
Plaintiff guilty of an extortion-related offense. Plaintiff contends that Warden Wendy Roal was
retaliating against him for suing the white state officials. From Plaintiff’s perspective, that same
retaliatory thread runs through the events that underlie this present civil rights action.
In January 2012, when Plaintiff asked Unit Manager Chamness to make copies of
various legal documents, Chamness snapped at Plaintiff and told him that that was not his job or
problem and Plaintiff should ask Counselor Bradley. Chamness commented, “You all think that
since you have a black captain, things will change here.”

Plaintiff thought Chamness was going

to attack him. Plaintiff contends that Chamness used abusive language and was aggressive—all
in violation of prison regulations. Plaintiff filed an administrative grievance against Chamness,
which Camp Administrator Baney wanted to “discuss” with Plaintiff.
Just after Plaintiff’s confrontation with Chamness, Warden Roal posted a policy
prohibiting inmates from obtaining, possession or creating UCC financing statements and similar
forms, and from possessing documents containing unauthorized personal information. Chamness
subsequently questioned Plaintiff about his 2009 action against the Georgia officials. Chamness
also questioned Plaintiff’s motivation in filing a grievance against him. Chamness then became
aggressive, coming across a desk and grabbing Plaintiff’s shirt. Plaintiff pulled away and went
to Counselor Bradley, begging for protection. Bradley said that he could not do anything
because Chamness was his boss; Plaintiff would have to tell C/O Rueling. No action was taken
against Chamness; rather, Plaintiff was placed in the Special Housing Unit after the altercation.

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Plaintiff was eventually transferred to FCI-Englewood, which is a more restrictive facility than
the Marion Camp.
Plaintiff filed an administrative grievance regarding the Chamness incident.
Warden Roal responded by explaining that the administrative matter was referred to the
appropriate personnel for disposition. Dissatisfied, Plaintiff appealed and received a similar
response from Regional Director Nelson. The appeal was pursued to the Office of General
Counsel, where Administrator Watts responded in a similar fashion.
Plaintiff contends that Bureau of Prisons Director Lappin, along with Watts,
Nelson, Roal, Baney, and Bradley, conspired to cover-up Chamness’s bias and physical assault,
thereby demonstrating deliberate indifference and violating Bureau of Prisons policy against
unethical conduct.
Plaintiff’s Bivens action asserts four counts, some of which contain multiple
claims. The Court construes the pro se complaint as asserting the following six counts. The
parties and the Court will use these designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court.
Count 1: Defendant Chamness used offensive bodily contact against
Plaintiff without provocation or justification, in violation of
the Eighth Amendment;
Count 2: Defendants Lappin, Watts, Nelson, Roal, Baney and
Bradley conspired to cover-up Chamness’s bias and assault
against Plaintiff, thereby exhibiting deliberate indifference
and violating Bureau of Prisons policy against unethical
conduct;
Count 3: Defendants Lappin, Watts, Nelson, Roal, Baney and
Bradley were aware though grievances that Chamness was
unfit for duty, but they failed to safeguard Plaintiff and
others, in violation of the Eighth Amendment;

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Count 4: In violation of the First Amendment, all Defendants acted
with retaliatory motives—stemming from Plaintiff’s civil
litigation and/or his administrative grievances;
Count 5: Defendant Chamness violated prison regulations when he
used abusive, racist language, in violation of the Fourteenth
Amendment;
Count 6: Defendant Roal violated Plaintiff’s First Amendment right
by banning the possession of certain UCC materials.
Discussion
Florida UCC, Inc.
As a preliminary matter, Plaintiff cannot bring suit on behalf of “Florida UCC,
Inc.” Plaintiff Gregory is proceeding pro se and he has moved for pauper status based on his
own lack of funds (see Doc. 2). Gregory is not an attorney. Federal Rule of Civil Procedure
11(a) requires each party or his attorney to sign the complaint and all other pleadings. Although
individuals may represent themselves in federal court, pro se litigants and non-lawyers cannot
represent other individuals or corporations. Nocula v. Tooling Systems International Corp., 520
F.3d 719, 725 (7th Cir.2008) (“corporations cannot appear pro se, and one pro se litigant cannot
represent another”) (citations omitted). Therefore, “Florida UCC, Inc.” will be dismissed as a
plaintiff/interested party.
Count 1
Count 1 alleges that Unit Manager Chamness used offensive bodily contact
against Plaintiff, without provocation or justification. This claim is premised upon Chamness
grabbing Plaintiff by the shirt.
The Eighth Amendment prohibits cruel and unusual punishment. As the Supreme
Court noted in Rhodes v. Chapman, 452 U.S. 337, 346 (1981), the amendment reaches beyond
barbarous physical punishment to prohibit the unnecessary and wanton infliction of pain and
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punishment grossly disproportionate to the severity of the crime. Id. (quoting Gregg v. Georgia,
428 U.S. 153, 173 (1976)).
An inmate seeking damages for the use of excessive force need not establish
serious bodily injury to make a claim, but not “every malevolent touch by a prison guard gives
rise to a federal cause of action .... [the] prohibition of ‘cruel and unusual’ punishment
necessarily excludes from constitutional recognition de minimis uses of physical force, provided
that the use of force is not of a sort ‘repugnant to the conscience of mankind.” ’ Hudson v.
McMillian, 503 U.S. 1, 9-10 (1992); see also Outlaw v. Newkirk, 259 F.3d 833, 837-38 (7th Cir.
2001). Grabbing Plaintiff’s shirt, even without provocation or justification, qualifies as de
minimis force, not rising to the level of an Eighth Amendment violation. Therefore, Count 1 will
be dismissed with prejudice.
Count 2
Count 2 alleges that Defendants Lappin, Watts, Nelson, Roal, Baney and Bradley
conspired to cover-up Chamness’s bias and assault against Plaintiff, thereby exhibiting deliberate
indifference and violating Bureau of Prisons policy against unethical conduct. The violation of a
Bureau of Prisons policy does not, by itself, constitute a constitutional violation actionable under
Bivens, which only permits suits for constitutional violations. See generally BelBachir v. County
of McHenry, 726 F.3d 975, 978 (7th Cir. 2013). Similarly, conspiracy is not an independent
basis of liability. See generally Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008); Cefalu v.
Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000). Moreover, the deliberate indifference and
conspiracy claims are conclusory and not sufficiently supported by allegations sufficient to
satisfy the Twombly pleading standard.

Therefore, Count 2 will be dismissed, albeit without

prejudice.

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Count 3
In Count 3 it is alleged that Defendants Lappin, Watts, Nelson, Roal, Baney and
Bradley were aware though grievances that Chamness was “unfit for duty,” but they failed to
safeguard Plaintiff and others, in violation of the Eighth Amendment. Having dismissed Count
1 regarding Chamness allegedly having offensive bodily contact with Plaintiff, this claim begins
to crumble.

Mere name-calling and rude, boorish behavior does not violate the Eighth

Amendment either. See, e.g., McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993). This claim
is otherwise too vague to support an Eighth Amendment claim that the prison officials failed to
protect Plaintiff and others. It is unclear how Chamness is unfit for duty in a way that violates
the Constitution. Consequently, Count 3 shall be dismissed without prejudice.
Count 4
Count 4 alleges that all Defendants acted with a retaliatory motive. The First
Amendment does protect against retaliation for activity otherwise protected by the First
Amendment, such as filing grievances and lawsuits. See DeWalt v. Carter, 224 F.3d 607, 618
(7th Cir. 2000). A retaliation claim may be based on a chronology of events from which
retaliation can be plausibly inferred. Zimmerman v. Tribble, 226 F.3d

568, 573 (7th Cir. 2000).

Although Plaintiff has stated a chronology of events, the claim is otherwise based upon
supposition upon supposition. Therefore, Count 4 will be dismissed without prejudice.

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Count 5
Count 5 alleges that Unit Manager Chamness violated prison regulations when he
used abusive, racist language, in violation of the Fourteenth Amendment—referring to
Chamness’s remark: “You all think that since you have a black captain, things will change here.”
Plaintiff’s reference to the Fourteenth Amendment is presumably based on the Equal Protection
Clause, imputing racial animus to Chamness. Obviously, the use of racial slurs can be evidence
of racial animus. DeWalt v. Carter, 224 F.3d 607, 612 n. 3 (7th Cir.). However, “[t]he use of
racially derogatory language, while unprofessional and deplorable, does not violate the
Constitution.” Id. at 612. (citing Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir.1987)).
Chamness made that remark relative to Plaintiff’s request that Chamness make copies, which is
not a constitutional entitlement. As pleaded, this claim does not cross the line from the possible
to the plausible, as required under Twombly. For these reasons, Count 5 is dismissed without
prejudice.
Count 6
Count 6 alleges that Warden Roal violated the First Amendment by forbidding
Plaintiff and other inmates from possessing of certain UCC materials. Inmates retain all First
Amendment rights not incompatible with their status as prisoners, “or with the legitimate
penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 832 (1974).
Roal’s 2012 policy was not a complete ban on the possession of such material.
Prisoners with a “legitimate reason” for possessing such materials were instructed to notify Unit
staff (see Doc. 1, p. 8). Furthermore, Plaintiff’s UCC materials were confiscated in 2011 by J.C.
Wright based on a purported “Patriot Act violation” (see Doc. 1, p. 6), not Roals 2012 policy

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posting. Therefore, Plaintiff has failed to state a claim against Warden Roal and Count 6 will be
dismissed with prejudice.
Disposition
IT IS HEREBY ORDERED that Plaintiff/Interested Party “Florida UCC, Inc.”
is DISMISSED from this action.
IT IS FURTHER ORDERED that COUNTS 1 and 6 are DISMISSED with
prejudice.
IT IS FURTHER ORDERED that COUNTS 2, 3, 4, and 5 are DISMISSED
without prejudice and with leave to amend. On or before December 27, 2013, Plaintiff shall file
an amended complaint stating a colorable constitutional claim, or this action will be dismissed
with prejudice. Any amended complaint will be reviewed pursuant to 28 U.S.C. § 1915A.
IT IS FURTHER ORDERED that, having dismissed all claims, Plaintiff’s
motion to have this case deemed complex (Doc. 6) and motion for recognition of his bond for
fees and costs (Doc. 9) are both DENIED. Plaintiff should note that no bond is required.
Plaintiff is ADVISED that his motion for pauper status (Doc. 2) will be addressed
by separate order. The Court is awaiting requested trust fund information from the prison.
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

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for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: December 2, 2013

s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE

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