Womack v. Cross et al
Filing
7
ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 6/8/2015. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RAY L. WOMACK,
No. 1938-031,
Plaintiff,
vs.
JAMES CROSS, JR.,
FRANCIS THAYER,
BRUCE NEESE,
JENNIFER BRAYE,
USA, and
UNKNOWN PARTIES,
Defendants.
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Case No. 15-cv-00543-MJR
MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Ray L. Womack is an inmate currently housed in the Greenville Federal
Correctional Institution.
Pursuant to 28 U.S.C. § 1331, Plaintiff brings this action for
deprivations of his rights with respect to his religious freedom as an American Indian. He asserts
First and Fifth Amendment claims under Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 403 U.S. 388 (1971), and similar claims under the Religious Freedom Restoration
Act (RFRA), 42 U.S.C. § 2000bb-1, and the American Indian Religious Freedom Act (AIRFA),
42 U.S.C. § 1996. He also asserts that the defendants have conspired to violate his civil rights, in
violation of 42 U.S.C. §§ 1985 and 1986. Furthermore, he contends various defendants have
violated federal pay policies by not giving a full day’s work for a full day’s pay.
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A. The Court is required to dismiss any portion of the complaint that is legally
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frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money
damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).
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). Frivolousness is an objective standard that refers
to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). 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. At this juncture, the factual
allegations of the 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, the Sweat Lodge religious ceremony for American Indians at
Greenville is regularly scheduled by Chaplain Francis Thayer for Saturdays, from 11:30 a.m. to
3:30 p.m. On October 11, 2014, Administrative Assistant for Religious Service Jennifer Braye
told Plaintiff and others that that day’s Sweat Lodge ceremony would end an hour early. She
explained she “had to get things ready for the Catholics” and had too many things to do by
herself, and that she had no intention of working overtime for the American Indians (Doc. 1-1, p.
4). She subsequently advised Plaintiff and his fellow worshipers of her intended changes to their
religious gathering: beginning the following week only two participants would be permitted to
participate in the Firekeeper move, and the fire would not be started in advance of the scheduled
start of the Sweat Lodge ceremony. Braye also cautioned the group that those who were on the
call-out list who missed the call-out would receive an incident report.
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A few days later, on October 14, the Native American group was called to meet with
Chaplain Thayer and Braye.
Braye announced the changes.
When an inmate voiced
disagreement, Braye had the inmate placed in segregation. She explained to the others that she
did not care if they “filed on her” because she knew people in the right places and would not be
going anywhere.
Under the new policies, Braye and Assistant Chaplin Bruce Neese leave inmates out in
the cold and rain until the scheduled time for a religious service to begin, while they remain in
their offices with the chapel locked.
By strictly adhering to the schedule, inmates lose
approximately 10 minutes from their time for worship because they must first set up the chapel
for their particular needs. Also, Braye routinely uses the f-word in the chapel and on the Native
American’s sacred ground, which Plaintiff perceives as a general disrespect for religion, and
evidence of a lack of moral character. It is further alleged that Braye attempts to dissuade and
impede him and other inmates from using the chapel during her work hours. Braye and Neese
have even managed to cancel extracurricular activities, such as movie nights for various religious
groups—they just cancel the event when Chaplain Thayer is not at work.
When Chaplain Thayer is not around, Braye closes the chapel early and leaves work
early, or she closes herself in the chapel and locks the door. It is also alleged that Assistant
Chaplain Neese manipulates his work hours the same way. Both Braye and Neese purportedly
still draw a full day’s pay for less than a day’s work.
Although inmates do not report what is going on out of fear of retaliation, Plaintiff
submitted a BP-8 informal complaint to his counselor regarding Braye’s discriminatory
practices. No response was received. The counselor eventually explained that the BP-8 had
been sent to SIS, but SIS never received the BP-8. Plaintiff then sent a BP-9 (the second step in
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the administrative grievance process), to Warden James Cross, Jr., complaining about Braye.
The BP-9 was denied because it was deemed untimely. Plaintiff then sent a BP-10 appeal to the
Bureau of Prison’s Regional Office; the appeal was also deemed untimely. A subsequent BP-11
appeal to the Central Office in Washington was similarly unsuccessful, even though Plaintiff had
sent documentation he believed proved that his BP-8 was timely filed. (See Doc. 1-2, pp. 2-20).
Plaintiff views the denial of his grievance at every step in the administrative process as a
conspiracy to systematically deny him—and other Native American’s—an equal ability to
practice their religioun and a denial of due process (see Doc. 1-1, p. 6). Since filing his
grievance, Plaintiff has not practiced his faith for fear of retaliation by Braye and/or Neese.
Plaintiff contends Braye and Neese, acting in conspiracy, have created a hostile
environment and otherwise substantially burdened the practice of his religion, and Warden Cross
and Chaplain Thayer have knowingly allowed them to do so. Plaintiff alleges a conspiracy to
deny him due process. And, he contends federal pay policies have been violated, costing
taxpayers money.
Plaintiff seeks injunctive relief from the United States. Plaintiff also seeks monetary
damages.
Based on the allegations in 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: Defendants Cross, Thayer, Neese and Braye, individually or in
conspiracy, burdened Plaintiff’s free exercise of his religion, in
violation of the First Amendment, RFRA and AIRFA;
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Count 2: Defendants Cross, Thayer, Neese and Braye, individually or in
conspiracy, failed to equally protect Plaintiff’s right to practice his
religion, in violation of the Fifth Amendment;
Count 3: Defendants Cross, the unnamed Regional Director and unnamed
Central Office Administrator, individually or in conspiracy,
denied Plaintiff due process and the ability to equally practice his
religion, all in violation of the Fifth Amendment;
Count 4: Defendants Neese and Braye, with the knowledge of Defendants
Cross and Thayer, violated federal pay policies; and
Count 5: Defendants conspired to violate his civil rights, in violation of 42
U.S.C. §§ 1985 and 1986.
Any intended claims not recognized above should be considered dismissed without
prejudice.
Discussion
Counts 1-2
Counts 1-2 state colorable claims under the First Amendment and RFRA. However, the
American Indian Religious Freedom Act (AIRFA), 42 U.S.C. § 1996, does not create a cause of
action—it essentially does not add anything to existing law. See Lyng v. Nw. Indian Cemetary
Protective Ass’n., 485 U.S. 439, 455 (1988). Consequently, the AIRFA claim within Count 1
will be dismissed with prejudice. Counts 1 and 2 shall otherwise proceed.
Count 3
Count 3 presents due process and equal protection claims stemming from the denial of
Plaintiff’s administrative grievances. Plaintiff contends there was a conspiracy at each level of
the review process, from Warden Cross, to the unidentified Regional Director, to the unnamed
Central Office Administrator in Washington.
As a preliminary matter, the complaint fails to adequately allege a conspiracy relative to
the denial of Plaintiff’s request for an administrative remedy. Claims of conspiracy necessarily
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require a certain amount of factual underpinning to survive preliminary review. See Woodruff v.
Mason, 542 F.3d 545, 551 (7th Cir. 2008) (quoting Massey v. Johnson, 457 F.3d 711, 716 (7th
Cir. 2006)). The complaint offers only the bald assertion that there was a conspiracy.
As for the Fifth Amendment claim, a due process claim lies where a plaintiff is deprived
of a constitutionally protected interest in “life, liberty, or property” without due process of law.
Zinermon v. Burch, 494 U.S. 113, 125 (1990). 1 Religious liberty is clearly a protected interest
under the First Amendment. Furthermore, the Supreme Court has interpreted the Due Process
Clause of the Fifth Amendment as also forbidding the Federal Government from denying equal
protection of the laws. See Davis v. Passman, 442 U.S. 228, 234 (1979); Markham v. White 172
F.3d 486, 491 (7th Cir. 1999).
An equal protection claim can be made under a “class of one” theory alleging that the
plaintiff has been treated differently from others similarly situated without a rational basis for the
difference in treatment. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The
complaint does not allege or remotely suggest that Plaintiff’s administrative remedies failed
because of any sort of forbidden animus. Rather, his administrative grievance was rejected
because it was untimely—the assertion that lies at the heart of the due process claim.
Plaintiff asserts that his BP-8 was timely filed with his counselor, thereby timely
commencing the grievance process. A review of the documentation attached to the complaint
reveals that Plaintiff has pleaded himself out of court.
The Bureau of Prisons provides a four-step administrative remedy program for federal
inmates. See 28 C.F.R. §§ 542.10–.19. First, an inmate must attempt to informally resolve a
complaint by filing a BP–8 form. 28 C.F.R. . § 542.13. Second, if still dissatisfied, an inmate
1
Case law interpreting the Fourteenth Amendment Due Process Clause is equally applicable to
the Fifth Amendment’s Due Process Clause. Crowder v. True, 74 F.3d 812, 814 (7th Cir. 1996).
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must submit a formal request for administrative remedy by filing a form BP–9. 28 C.F.R. §
542.14. Third, an inmate must appeal the step-two decision by filing a BP–10 with the Regional
Director. 28 C.F.R. § 542.15. Finally, an inmate must appeal the Regional Director’s response
by filing a BP–11 with the General Counsel (Central Office). Id.
Regardless of whether Plaintiff timely filed his BP-8 grievance seeking informal
resolution, the BP-9 initiating the formal administrative remedy process must be filed within 20
calendar days from the date of the occurrence that is at issue.
28 C.F.R. § 542.14(a).
Furthermore, even if Plaintiff did not receive a response to his BP-8, 28 C.F.R. § 542.18
provides: “If the inmate does not receive a response within the time allotted for reply, including
extension, the inmate may consider the absence of a response to be a denial at that level.”
Plaintiff’s November 6, 2014, BP-9 pertains to Braye shortening the Sweat Lodge ceremony on
October 11, 2014 (Doc. 1-2, pp. 2-3). Thus, the BP-9 was submitted at least 26 days after the
event at issue, making the BP-9 untimely, which was the conclusion at the institutional level
(Doc. 1-2, p. 6).
On appeal, the Regional Office agreed that the BP-9 was untimely, and also found that
the BP-10 was untimely (Doc. 1-2, p. 15). As already explained, the BP-9 was untimely, so that
basis alone is sufficient for the Regional Office to uphold the denial of the administrative
remedy. The Central Office merely concurred with the previous rulings (Doc. 1-2, p. 10).
Merely “[r]uling against a prisoner on an administrative complaint does not cause or contribute
to the [constitutional] violation.” George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); see also
McGee v. Adams, 721 F.3d 474, 485 (7th Cir. 2013). A cause of action does not arise where a
plaintiff files a grievance, and simply disagrees with the outcome. See Conyers v. Abitz, 416
F.3d 580, 586 (7th Cir. 2005). Consequently, there is no basis for any due process claim or equal
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protection claim.
Count 3 will be dismissed with prejudice.
Accordingly, the unnamed
Regional Director and Central Administrator shall be dismissed as defendants, as there are no
other claims asserted against them.
Count 4
It is alleged in Count 4 that Defendants Braye and Neese, with the knowledge of
Defendants Cross and Thayer, violated federal pay policies. Essentially, Plaintiff claims Braye
and Neese were not giving taxpayers a full day’s work for a full day’s pay. That kind of harm is
insufficient to confer Article III standing on Plaintiff. See Lujan v. Defenders Of Wildlife, 504
U.S. 555, 560 (1992) (stating that a plaintiff has standing if he has suffered, or imminently will
suffer, a “concrete and particularized” injury that is “fairly traceable” to defendant and will be
redressed by a decision in plaintiff s favor) (quotations omitted); Rifkin v. Bear Stearns & Co.,
Inc., 248 F.3d 628, 632 (7th Cir. 2001) (“It is axiomatic that being a citizen or taxpayer of an
injured governmental body, without more, is not a sufficient injury in fact to create standing for
the taxpayer to seek redress of the government's injury.”). Therefore, Count 4 will be dismissed
without prejudice.
Count 5
Citing 42 U.S.C. §§ 1985 and 1986, Plaintiff asserts a free-standing claim that all named
defendants—all of whom are employees of the Bureau of Prisons—conspired to violate his civil
rights. The Seventh Circuit has held that under the intracorporate conspiracy doctrine, a Section
1985 conspiracy claim “cannot exist between members of the same entity.” Payton v. Rush
Presbyterian—St. Luke’s Med. Ctr., 184 F.3d 623, 632 (7th Cir. 1999). This doctrine has been
extended to both private and governmental actors. See Wright v. Ill. Dep’t of Children & Family
Servs., 40 F.3d 1492, 1508 (7th Cir. 1994). When a Plaintiff’s claim fails under Section 1985,
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his Section 1986 claim also fails. Smith v. Gomez, 550 F.3d 613, 617-18 (7th Cir. 2008); Hicks
v. Resolution Trust Corp., 970 F.2d 378, 382 (7th Cir. 1992). Count 5 will be dismissed with
prejudice.
The United States
Plaintiff names the United States as a defendant for purposes of injunctive relief.
Because any injunctive relief would be executed by Warden Cross in his official capacity, the
United States will be dismissed as a defendant. See generally Ex Parte Young, 209 U.S. 123,
151-56 (1908).
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, the AIRFA claim in COUNT 1
is DISMISSED with prejudice; the First Amendment and RFRA claims in COUNT 1 shall
otherwise PROCEED.
IT IS FURTHER ORDERED that COUNT 2 shall PROCEED.
IT IS FURTHER ORDERED that COUNT 3 is DISMISSED with prejudice.
Accordingly, the UNKNOWN PARTIES—the unnamed Regional Director and Central
Administrator—are DISMISSED as defendants to this action.
IT IS FURTHER ORDERED that COUNT 4, the pay claim, is DISMISSED without
prejudice for lack of standing.
IT IS FURTHER ORDERED that COUNT 5 is DISMISSED with prejudice.
IT IS FURTHER ORDERED that Defendant USA is DISMSSED as a defendant to
this action.
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The Clerk of Court shall prepare for Defendants JAMES CROSS, JR., FRANCIS
THAYER, BRUCE NEESE and JENNIFER BRAYE: (1) Form 5 (Notice of a Lawsuit and
Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons).
The Clerk is DIRECTED to mail these forms, a copy of the complaint, and this Memorandum
and Order to each Defendant’s place of employment as identified by Plaintiff. If a Defendant
fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days
from the date the forms were sent, the Clerk shall take appropriate steps to effect formal service
on that Defendant, and the Court will require that Defendant to pay the full costs of formal
service, to the extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if
not known, the Defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
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.
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Defendants JAMES CROSS, JR., FRANCIS THAYER, BRUCE NEESE and
JENNIFER BRAYE 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 Stephen C. Williams for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to a United States Magistrate Judge 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.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under Section 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding
that his application to proceed in forma pauperis may have 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
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for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: June 8, 2015
s/ Michael J. Reagan
MICHAEL J. REAGAN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
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