McCoy v. Edmeister et al

Filing 10

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 2/3/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER H. McCOY, # 09150-025,
Plaintiff,
vs.
ERIC T. EDMEISTER,
RENEE STRAUSS,
ROBIN V. BRYSON,
and JEFFREY S. WALTON,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 14-cv-1379-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff, an inmate in the United States Penitentiary in Marion, brings this action 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). This case is now
before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A.
In his complaint, Plaintiff asserts that his constitutional rights were violated when his
privileged and confidential correspondence from his former defense attorney was read by prison
officials and then confiscated. The violation was compounded when Defendants refused to
return these documents to him. Plaintiff claims that his inability to have free access to this
material has hindered him from prosecuting his pending criminal appeal.
On October 24, 2013, Defendant Edmeister brought Plaintiff an envelope received from
attorney Todd Schultz (Doc. 1, p. 4). Defendant Edmeister opened the mail in Plaintiff’s
presence to check for contraband.

He found that the mail contained several sentencing

transcripts from Plaintiff’s criminal case, and he proceeded to read these and other documents
Page 1 of 10

sent by the attorney. Defendant Edmeister then told Plaintiff that he was “not allowed to have
this,” and he would give it to Plaintiff’s case manager to review. Despite Plaintiff’s protests that
Defendant Edmeister was not allowed to read or possess this privileged legal mail, he
confiscated the documents and took them away.
At the time of this incident, Plaintiff’s criminal appeal was pending in the Seventh Circuit
Court of Appeals; he claims that it remains pending as of the date this action was filed. Plaintiff
asserts that the confiscated legal mail has never been returned to him, and he continues to be
harmed by its retention.
Plaintiff immediately filed a grievance. It was denied, as were Plaintiff’s subsequent
appeals over this dispute. Defendant Warden Walton’s response informed Plaintiff that he was
not allowed to have the sentencing transcripts in his possession, because they contained
information similar to what would be found in a pre-sentence investigation report (“PSI”) or
statement of reasons for the sentence (“SOR”) (Doc. 1, p. 17). This information could pose a
threat to his safety and security if other prisoners were to see the documents or learn of their
contents (Doc. 1, pp. 6-7, 17, 22). Plaintiff notes that the denial of his BP-10 appeal stated that
prison staff had allowed him to access the documents in a secured area, and such access would
be provided in the future (Doc. 1, pp. 7, 22).
Plaintiff seeks an injunction to compel Defendants to immediately surrender the legal
mail to him, as well as compensatory and punitive damages. He claims that Defendants Strauss
(case manager), Bryson (unit manager), and Walton conspired to violate his civil rights as well
as prison policy (Doc. 1, p. 8).
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the

Page 2 of 10

complaint and to dismiss any claims that are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief from an immune defendant.
Based on the allegations of the complaint, the Court finds it convenient to divide the pro
se action into the following 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. The
designation of these counts does not constitute an opinion as to their merit.
Count 1: First Amendment claim against Defendant Edmeister, for reading and
then confiscating Plaintiff’s privileged attorney-client correspondence and
documents;
Count 2: First Amendment claim against Defendant Walton, for refusing to
return Plaintiff’s privileged attorney-client correspondence and documents;
Count 3: First Amendment claim against Defendants Edmeister and Walton for
denying Plaintiff access to the courts, by limiting Plaintiff’s access to his court
transcripts and prohibiting him from keeping that material in his possession;
Count 4: Claim against Defendants Strauss, Bryson, and Walton for conspiracy
to violate Plaintiff’s civil rights and Bureau of Prisons (“BOP”) policy.
For the reasons discussed below, Counts 1 and 2 shall proceed for further review. Count
3 shall be dismissed without prejudice for failure to state a claim upon which relief may be
granted. Count 4 also shall be dismissed.
Count 1 – Reading and Confiscating Attorney-Client Privileged Correspondence
As the Seventh Circuit has explained,
Inmates have a First Amendment right both to send and receive mail, Rowe v.
Shake, 196 F.3d 778, 782 (7th Cir. 1999), but that right does not preclude prison
officials from examining mail to ensure that it does not contain contraband, Wolff
v. McDonnell, 418 U.S. 539, 576, 94 S. Ct. 2963, 41 L.Ed.2d 935 (1974); Rowe,
196 F.3d at 782. An inmate’s legal mail is entitled to greater protections because
of the potential for interference with his right of access to the courts. Rowe, 196
F.3d at 782.
Kaufman v. McCaughtry, 419 F.3d 678, 685-86 (7th Cir. 2005).

Page 3 of 10

The Supreme Court in Wolff discussed the practice of opening incoming legal (attorneyclient) mail in the presence of the inmate, as a way to ensure that the material could be inspected
for contraband while at the same time maintaining the inmate’s right to keep the communications
confidential. Such a practice “could in no way constitute censorship, since the mail would not be
read. Neither could it chill such communications, since the inmate’s presence insures that prison
officials will not read the mail.” Wolff, 418 U.S. at 577.
According to Plaintiff’s complaint, however, his presence did not deter Defendant
Edmeister from reading the documents mailed to him by the attorney. This conduct went beyond
the mere inspection for contraband contemplated by Wolff, and it raises concern over the
potential chilling effect on client-attorney communication referenced in that case. At this stage
of the litigation, Plaintiff states a First Amendment claim that merits further consideration, not
only for the reading of his privileged legal communication, but also for the “censorship” that
occurred when Defendant Edmeister kept the material.
Although Plaintiff makes much of the allegation that Defendant Edmeister violated
Bureau of Prisons (“BOP”) policies when he confiscated the documents, such a violation, even if
proven, does not rise to the level of a constitutional claim. See White v. Henman, 977 F.2d 292,
295 (7th Cir. 1992) (the violation of an administrative rule is not the same as a violation of the
Constitution). Therefore, the issue of whether or not the confiscation of Plaintiff’s documents
ran afoul of BOP regulations shall not be considered further.
Count 2 – Retention of Attorney-Client Privileged Correspondence
Under the authority discussed above, Plaintiff also may proceed with his claim against
Defendant Walton for interfering with Plaintiff’s privileged attorney-client communication, for
his retention and refusal to return Plaintiff’s documents.

Page 4 of 10

Dismissal of Count 3 – Denial of Access to the Courts
Prisoners have a fundamental right of meaningful access to the courts. Bounds v. Smith,
430 U.S. 817 (1977).

An inmate has no constitutional claim, however, unless he can

demonstrate that a non-frivolous legal claim has been frustrated or impeded. Lewis v. Casey, 518
U.S. 343, 352-53 (1996). 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) (harmless error analysis applies to an access to courts claim).
Here, Plaintiff claims that his right to unhindered access to the courts has been violated,
because he has been given only limited access to the confiscated documents. This is not
satisfactory to him, as he maintains he has the right to have the documents in his possession at all
times, and he “continues to be harmed” by Defendants’ actions (Doc. 1, p. 6). Aside from his
general assertion of “harm,” however, Plaintiff fails to articulate any way in which he was
prejudiced in his ability to pursue a challenge to his conviction.
A review of this Court’s records discloses that Plaintiff pleaded guilty in this district to
five counts, including distribution, receipt, and possession of child pornography; enticement; and
transmission of obscene material to a minor. United States v. McCoy, Case No. 11-cr-30076DRH (S.D. Ill.). He was sentenced on January 27, 2012, to 327 months in prison on the
enticement count, concurrent with several lesser terms. On August 15, 2012, the judgment and
sentence were affirmed on direct appeal (Doc. 45 in criminal case). 1 The Supreme Court denied

1

This unpublished decision contains an extensive discussion of the evidence brought forth at Plaintiff’s
sentencing hearing, which included his transmission of sexually explicit pictures and videos over the
internet to an undercover officer; and his communication with minors over the internet describing his
violent sexual fantasies involving children and encouraging them to engage in incest as he claimed to be

Page 5 of 10

his petition for certiorari on January 22, 2013, ending his direct appeal. The mail confiscation
did not occur until October 2013, thus that incident could not have had any effect on Plaintiff’s
ability to prosecute the direct appeal of his sentence.
Approximately three months after Defendant Edmeister confiscated the correspondence
from attorney Schultz containing Plaintiff’s sentencing transcripts, Plaintiff filed (on December
19, 2013) a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.
McCoy v. United States, Case No. 13-cv-1318-DRH. The Court appointed an attorney (not
attorney Schultz) to represent Plaintiff.

Following an evidentiary hearing, the motion was

denied, and judgment was entered on July 31, 2014. Plaintiff appealed, and this appeal of the
§ 2255 proceeding is still pending at this time. McCoy v. United States, Appeal No. 14-2741
(7th Cir.). The appellate court also appointed counsel to represent Plaintiff in this pending
appeal. Briefing has been ordered on the following issues: (1) Whether Plaintiff has defaulted
any claim based on the acceptance of his guilty pleas by a United States Magistrate Judge, and
(2) Whether Plaintiff is entitled to any relief if the claim is not defaulted, and if so, what is the
appropriate remedy? (Doc. 10, Appeal No. 14-2741).
In light of the fact that Plaintiff succeeded in filing a timely collateral attack on his
sentence, which had sufficient merit to warrant the appointment of counsel, the Court cannot
discern that Plaintiff suffered any detriment from the Defendants’ limitation on his access to the
confiscated court transcripts. This is true both for Plaintiff’s ability to file the original § 2255
motion and the currently pending appeal of the § 2255 matter. Plaintiff himself notes that he was
not denied all access to this material; he was allowed to review it by making arrangements with a
counselor. Therefore, Plaintiff’s claim that he was denied access to the courts as a result of the
doing. The inclusion of Plaintiff’s offense conduct in the confiscated sentencing transcripts indeed could
implicate the security concerns reflected in Defendants’ responses to Plaintiff’s requests for
administrative remedy.

Page 6 of 10

confiscation and restricted access to his sentencing transcripts (Count 3) shall be dismissed at
this time without prejudice.
Dismissal of Count 4 – Conspiracy
Plaintiff seeks damages against Defendants Strauss, Bryson, and Walton alleging they
conspired together to violate his civil rights and BOP policy. As noted above, a violation of
BOP administrative rules or policies does not give rise to a constitutional claim. For this reason,
the portion of Count 4 that is based on the violation of BOP policy shall be dismissed with
prejudice.
Other than Plaintiff’s bare assertion that Defendants Strauss, Bryson, and Walton
conspired to violate his civil rights (Doc. 1, p. 8), Plaintiff never mentions Defendants Strauss or
Bryson elsewhere in the complaint. He never describes what these individuals did that might
have violated his rights, nor does he state how Defendant Walton furthered any conspiracy.
Without any factual description, the Court cannot discern whether a conspiracy may have
occurred. A complaint 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). Courts “should not accept as adequate abstract recitations
of the elements of a cause of action or conclusory legal statements.” Brooks v. Ross, 578 F.3d
574, 581 (7th Cir. 2009). Plaintiff’s claim of conspiracy is just such a conclusory statement,
unsupported with any factual allegations.
Conspiracy is not an independent basis of liability in a civil rights action brought
pursuant to 28 U.S.C. §1983. See 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); Hill v. Shobe, 93 F.3d 418, 422 (7th Cir.
1996) (“There is no constitutional violation in conspiring to cover-up an action which does not

Page 7 of 10

itself violate the Constitution”). The same is true for a Bivens action, which is the federal
equivalent of a § 1983 civil rights action. See Glaus v. Anderson, 408 F.3d 382, 386 (7th Cir.
2005); Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997) (collecting cases).

Thus, if

Plaintiff’s claim is based on a theory that these Defendants conspired to obstruct his access to the
courts, the claim must fail along with Count 3. At this time, the portion of Count 4 that is based
on an alleged conspiracy to violate civil rights shall be dismissed without prejudice. Because no
claim has been stated against Defendants Strauss or Bryson, they shall be dismissed from the
action without prejudice.
Pending Motions
Plaintiff’s motion for injunctive relief (Doc. 7) shall be referred to United States
Magistrate Judge Wilkerson for further consideration.
Because Plaintiff was not granted leave to proceed in forma pauperis in this action and
has paid the filing fee, the Court will appoint the United States Marshal to effect service of
process upon Defendants only when a proper motion is filed. Plaintiff has done so, by filing his
motion for service of process at government expense (Doc. 9). This motion shall be GRANTED
in part and DENIED in part. Service shall be ordered below on those Defendants who remain
in the action. No service shall be ordered on the dismissed Defendants.
Disposition
COUNT 3 is DISMISSED without prejudice for failure to state a claim upon which
relief may be granted. COUNT 4 is also DISMISSED for failure to state a claim upon which
relief may be granted; the portion claiming conspiracy to violate BOP policy is dismissed with
prejudice, and the portion claiming conspiracy to violate civil rights is dismissed without
prejudice. Defendants STRAUSS and BRYSON are DISMISSED from this action without

Page 8 of 10

prejudice.
The Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a summons and
form USM-285 for service of process on Defendants EDMEISTER and WALTON; the Clerk
shall issue the completed summons. The United States Marshal SHALL serve Defendants
EDMEISTER and WALTON 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.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on Defendants or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that 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 Donald G. Wilkerson for further pre-trial proceedings.

Page 9 of 10

Further, this entire matter shall be REFERRED to United States Magistrate Judge
Wilkerson 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.
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: February 3, 2015

______________________________
NANCY J. ROSENSTENGEL
United States District Judge

Page 10 of 10