Harmon v. Walton et al

Filing 14

ORDER DISMISSING CASE with prejudice against all named defendants for failure to state a claim upon which relief may be granted. Because Harmon's Amended Complaint still fails to state a claim upon which relief may be granted, this Court will now assess a strike for the dismissal of the Amended Complaint, pursuant to § 1915A(b)(1). Signed by Chief Judge Michael J. Reagan on 9/22/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
THEODORE HARMON,
#57859-060
Plaintiff,
vs.
J.S. WALTON,
UNKNOWN PARTIES,
WILLIAM MAYS, BRAD WEESEL,
RUNGY, and JOHN DOE,
Defendants.

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Case No. 15-cv-1351-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Theodore Harmon, an inmate in the United States Penitentiary in Marion,
Illinois (“Marion”), brings this pro se action for alleged violations of his constitutional rights by
persons acting under the color of federal authority. 1 See Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971). This case is now before the Court for preliminary review of the complaint
pursuant to 28 U.S.C. § 1915A. Harmon’s claims stem from alleged incidents of his incoming
mail being rejected by the mailroom on the premise that it contained depictions of nudity or other
inappropriate content. Harmon also alleges that a number of prison officials violated his rights in
denying his grievances regarding the screening of his incoming mail. In connection with his
claims, Harmon names J.S. Walton (warden), Unknown parties (John/Jane Does 2-4, publication
review committee members, and John/Jane Does 5-6, mailroom staff), William Mays
1

It should be noted that Harmon checked the box on the first page of his complaint indicating that he also wished to
bring his claims under the Federal Tort Claims Act (“FTCA”). 28 U.S.C. § 1346. In order to bring a claim under the
FTCA, a prisoner must demonstrate complete exhaustion of administrative remedies prior to instituting his suit. See
28 U.S.C. § 2675(a). It does not appear that Harmon has satisfied this exhaustion requirement at this juncture,
accordingly, the Court will consider his complaint as presenting claims pursuant to Bivens.
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(counselor), Brad Weesel (counselor), Rungy (correctional system specialist), and John Doe
(administrative remedy coordinator). Harmon seeks monetary damages and injunctive relief.
Under § 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the
complaint that is legally 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. 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
Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance Serv.,

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577 F.3d 816, 821 (7th Cir. 2009).
Applying these standards, the Court finds that Harmon’s Complaint fails to state any
claims upon which relief may be granted. It should be noted that the Court reviewed Harmon’s
First Amended Complaint for purposes of this screening order (Doc. 12).
The Complaint
Harmon alleges that on or about April 23, 2015, the mailroom at Marion received a
publication—Flat Chested Lydia; Fresh Face Model Chloe Knoxs—that was addressed to him
(Doc. 12 at 10). John/Jane Does 5 and 6 allegedly examined the publication and flagged it for
nudity or sexually explicit content (Id.). The publication review committee then reviewed and
rejected the publication (Id.). The committee was led by defendant Rungy, and was comprised of
John/Jane Does 2-4 (Id.). Warden J.S. Walton subsequently reviewed and rejected the
publication on the same grounds (Id.). Harmon then received notice of the Warden’s actions and
commenced the grievance process (Id. at 11).
According to Harmon, the publication contained thumbnail sized images that did not
depict nudity, but instead contained images of negligee clad models that could be ordered as
larger prints (Id. at 10). Harmon alleges that the content depicted did not fall within the scope of
materials exempted by the Ensign Amendment or other BOP procedures (Id.). Despite raising
these concerns throughout the grievance process, Harmon secured no relief (Id. at 11-12). In
addition to his grievances being rejected, Harmon contends that he was prevented from properly
filing a Regional Appeal of his grievance because his counselor, Defendant Weesel, intentionally
interfered with the proper format for filings, made himself unavailable during the timeframe that
the grievance was due, and refused to grant an exception based on the correlation between his
unavailability and Harmon’s attempts to file a grievance (Id.). As a result of Weesel’s actions,

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John Doe (the facility remedy coordinator) rejected one of Harmon’s grievances for a formatting
deficiency (Id.).
Harmon ultimately alleges that he is unsure what legal theories might apply to his
situation, but that he prays for any applicable relief. He also claims that the parties acted in a
conspiracy to deny his rights, as contemplated by 42 U.S.C. § 1985 (Id. at 12).
Merits Review Pursuant to 28 U.S.C. § 1915A
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. Any other claim that
is mentioned in the complaint but not addressed in this Order should be considered dismissed
without prejudice.
Count 1: First Amendment claim for rejection of Harmon’s incoming mail in
April 2015,
Count 2: Fifth Amendment Due Process violation for preventing access to the
prison grievance procedure; and,
Count 3: Conspiracy claim against the defendants for acting together to deny
Harmon’s rights in violation of 42 U.S.C. § 1985.
Count 1
The Supreme Court has recognized that prisoners have protected First Amendment
interests in both sending and receiving mail. See generally Thornburgh v. Abbott, 490 U.S. 401
(1989) (discussing the scope of a prisoner’s First Amendment rights and collecting cases on the
framework to be used to assess mail screening mechanisms); Turner v. Safely, 482 U.S. 78
(1987); Pell v. Procunier, 417 U.S. 817, 822 (1974) (“[a] prison inmate retains those First
Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate
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penological objectives of the corrections system”). The Seventh Circuit has held that “[t]he freespeech clause of the First Amendment applies to communications between an inmate and an
outsider.” Zimmerman v. Tribble, 226 F.3d 568, 572 (7th Cir. 2000) (citing Martin v. Brewer,
830 F.2d 76, 76 (7th Cir. 1987)). To assert a cause of action for interference with or denial of
one’s mail under the First Amendment, a prisoner must “allege[] a continuing pattern or repeated
occurrences of such conduct.” Id. (citing Sizemore v. Williford, 829 F.2d 608, 609 (7th Cir.
1987)).
However, while prisoners generally have a constitutionally-protected interest in their
incoming and outgoing mail, “[p]rison officials may…impose restrictions on prisoner
correspondence if those restrictions are ‘reasonably related to legitimate penological interests.’”
Van den Bosch v. Raemisch, 658 F.3d 778, 785 (7th Cir. 2011) (quoting Turner, 482 U.S. at 89)).
Crime deterrence, prisoner rehabilitation, and protecting the safety of prison guards and inmates
are all legitimate penological interests. Id. In Turner, the Supreme Court held that prison
regulations must be assessed under the following factors: (1) whether there is a “valid, rational
connection between the prison regulation and the legitimate governmental interest put forward to
justify it; (2) whether the inmate has access to “alternative means” of exercising the restricted
right; (3) the “impact [an] accommodation of the asserted constitutional right will have on guards
and other inmates, and on the allocation of prison resources generally”; and, (4) whether the
regulation is an “exaggerated response to prison concerns.” Turner, 482 U.S. at 89-91.
Of special concern, are content-based restrictions upon a prisoner’s exercise of his First
Amendment rights. See Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999) (discussing the
parameters of a prisoner’s First Amendment rights to mail and noting that a non-content based
claim of minor interference with mail typically does not state a claim grounded in the First

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Amendment). As is the case with any right a prisoner holds, the right may be subject to certain
limitations based on the prison’s security needs, and whether there exists a “sufficiently
important governmental interest to justify limitations on a prisoner’s first amendment rights.”
See id. (citation omitted). The Ensign Amendment states, in relevant part:
[N]o funds [available to the Attorney General for the Federal Prison System] may be used
to distribute or make available to a prisoner any commercially published information or
material that is sexually explicit or features nudity.
28 U.S.C. § 530C(b)(6) (emphasis added). Implementing regulations define “sexually explicit”
as “a pictorial depiction of actual or simulated sexual acts including sexual intercourse, oral sex,
or masturbation.” 28 C.F.R. § 540.72(b)(4). “Nudity” refers to “pictorial depiction[s] where
genitalia or female breasts are exposed.” Id. § 540.72(b)(2). The term “features” means the
publication depicts “nudity or sexually explicit conduct on a routine basis or promotes itself
based upon such depictions in the case of individual one-time issues.” Id. § 540.72(b)(3).
However, nudity is not a “feature” where it illustrates “medical, educational, or anthropological
content.” Id.
The regulations also define the procedures prisons must take when they are prohibited
from distributing material under the Ensign Amendment:
When commercially published information or material may not be distributed by staff or
made available to inmates due to statutory restrictions (for example, a prohibition on the
use of appropriated funds to distribute or make available to inmates information or
material which is sexually explicit or features nudity,) the Warden or designee shall
return the information or material to the publisher or sender. The Warden or designee
shall advise the publisher or sender than an independent review of the decision may be
obtained by writing to the Regional Director within 20 days of receipt of the notification
letter. Staff shall provide the inmate with written notice of the action.
Id. § 540.72(a).
Here, Harmon has failed to state a claim against any named defendant for violating his
First Amendment rights because he has not identified a pattern of repeated occurrences. His
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complaint alleges a single rejection in April 2015 of a catalogue containing thumbnail images.
See Zimmerman, 226 F.3d at 572; Sizemore, 829 F.3d at 610-11. He asserts that the defendants
deemed the images violative of prison policy because they contained nudity, though the images
did not, by his account, depict nudity. Regardless of the contents of the images in question,
Harmon’s claim fails because he complains of a one-time issue. Accordingly, Count 1 will be
dismissed with prejudice as to all named defendants.
Count 2
In addition to alleging an infringement of his First Amendment rights, Harmon also
alleges that his due process rights were violated by certain defendants obstructing his access to
the grievance process. This claim fails for two reasons. First, prisoners do not have a freestanding interest in the existence of a grievance procedure, so any obstruction of his access to the
grievance procedure does not state a claim. See Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir.
2011) (finding that a failure to comply with a prison procedure or regulation does not give rise to
a claim where the failing official did not otherwise participate in the underlying conduct).
However, a prisoner may have a due process claim if the allegations include the obstruction of a
grievance about an underlying constitutional violation. See Perez v. Fenoglio, 792 F.3d 768, 78181 (7th Cir. 2015) (finding that prison officials who received detailed correspondence about an
underlying constitutional violation may be personally liable for failing to act upon receipt of
those grievances). This gives rise to the second reason that Harmon’s claim fails—with the
dismissal of Count 1, he has failed to identify an underlying constitutional violation.
Accordingly, Count 2 is dismissed with prejudice as to all defendants.
Count 3
Finally, as to his conspiracy claim, Harmon has failed to identify a sufficient factual basis

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to allow this claim to proceed beyond screening. At minimum, to present a claim for a
conspiracy, a plaintiff must “demonstrate that the conspirators have an agreement to inflict injury
or harm upon him.” Sow v. Fortville Police Dept., 636 F.3d 293, 304-05 (7th Cir. 2011).
“The agreement may be inferred from circumstantial evidence, but only if there is sufficient
evidence that would permit a reasonable jury to conclude that a meeting of the minds had
occurred and that the parties had an understanding to achieve the conspiracy’s objectives.” Id. at
305 (citation omitted).
Here, Harmon’s mention of a conspiracy is insufficient, even at the early pleadings stage,
to satisfy basic pleading requirements under Federal Rule of Civil Procedure 8 or Bell, 550 U.S.
at 570 (requiring a plaintiff to plead “enough facts to state a claim to relief that is plausible on its
face”). The factual allegations do not support a conspiracy claim against defendants based on
their apparent screening of his incoming mail or rejection of his access to the grievance process.
Harmon has not set forth with any particularity when the defendants met to hatch a conspiracy,
what they agreed to do in furtherance of that conspiracy, or how the conspiracy was designed to
harm him. Identifying a bare legal theory without any factual allegations is insufficient to state a
claim for relief. See Bell, 550 U.S. at 570; Brooks, 578 F.3d at 581 (courts should not accept
threadbare or conclusory legal elements as stating a claim). Thus, Count 3 is dismissed with
prejudice as to all defendants.
Pending Motions
Harmon’s Motion for a temporary restraining order (TRO) or a preliminary injunction
(Doc. 3) is hereby DENIED. Because the Court does not find that Harmon has stated a claim for
an underlying harm, it would be inappropriate for the Court to grant any sort of injunctive relief.
Harmon’s Motion for Class Certification (Doc. 4) is hereby DENIED as moot because

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none of his claims are being allowed to proceed.
Likewise, Harmon’s Motion for Appointment of Counsel (Doc. 10) and his Motion for
Recruitment of Counsel (Doc. 13) are hereby DENIED as moot because none of his claims are
proceeding.
Disposition
IT IS ORDERED that ALL COUNTS are DISMISSED with prejudice against all
named defendants for failure to state a claim upon which relief may be granted.
Because Harmon’s Amended Complaint still fails to state a claim upon which relief may
be granted, this Court will now assess a strike for the dismissal of the Amended Complaint,
pursuant to § 1915A(b)(1). See Paul v. Marberry, 658 F.3d 702, 704 (7th Cir. 2011) (noting that
a “dismissal is a dismissal, and provided that it is on one of the grounds specified in [§] 1915(g)
it counts as a strike, . . ., whether or not it’s with prejudice.”).
Plaintiff's obligation to pay the filing fee for this action was incurred at the time the
action was filed, thus the filing fee of $350 remains due and payable. See 28 U.S.C. §
1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
The Clerk shall CLOSE THIS CASE and enter judgment accordingly.

Notice
If Plaintiff wishes to contest this Order, he has two options. He can ask the Seventh
Circuit to review the Order, or he can first ask the undersigned to reconsider the Order before
appealing to the Seventh Circuit.
If Plaintiff chooses to go straight to the Seventh Circuit, he must file a notice of appeal
within 30 days from the entry of judgment or order appealed from. FED. R. APP. P. 4(a)(1)(A).

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The deadline can be extended for a short time only if Plaintiff files a motion showing excusable
neglect or good cause for missing the deadline and asking for an extension of time. FED. R. APP.
P. 4(a)(5)(A), (C). See also Sherman v. Quinn, 668 F.3d 421, 424 (7th Cir. 2012) (explaining the
good cause and excusable neglect standards); Abuelyaman v. Illinois State Univ., 667 F.3d 800,
807 (7th Cir. 2011) (explaining the excusable neglect standard).
On the other hand, if Plaintiff wants to start with the undersigned, he should file a motion
to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). The motion must be
filed within twenty-eight (28) days of the entry of judgment, and the deadline cannot be
extended. FED. R. CIV. P. 59(e); 6(b)(2). The motion must also comply with Rule 7(b)(1) and
state with sufficient particularity the reason(s) that the Court should reconsider the judgment.
Elustra v. Mineo, 595 F.3d 699, 707 (7th Cir. 2010); Talano v. Nw. Med. Faculty Found., Inc.,
273 F.3d 757, 760 (7th Cir. 2001). See also Blue v. Hartford Life & Acc. Ins. Co., 698 F.3d 587,
598 (7th Cir. 2012) (“To prevail on a Rule 59(e) motion to amend judgment, a party must clearly
establish (1) that the court committed a manifest error of law or fact, or (2) that newly discovered
evidence precluded entry of judgment.”) (citation and internal quotation marks omitted).
So long as the Rule 59(e) motion is in proper form and timely submitted, the 30-day
clock for filing a notice of appeal will be stopped. FED. R. APP. P. 4(a)(4). The clock will start
anew once the undersigned rules on the Rule 59(e) motion. FED. R. APP. P. 4(a)(1)(A), (a)(4),
(a)(4)(B)(ii). To be clear, if the Rule 59(e) motion is filed outside the 28-day deadline or
“completely devoid of substance,” the motion will not stop the clock for filing a notice of appeal;
it will expire 30 days from the entry of judgment. Carlson v. CSX Transp., Inc., 758 F.3d 819,
826 (7th Cir. 2014); Martinez v. Trainor, 556 F.2d 818, 819–20 (7th Cir. 1977). Again, this
deadline can be extended only on a written motion by Plaintiff showing excusable neglect or

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good cause.
The Court has one more bit of instruction regarding the appeals process. If Plaintiff
chooses to appeal to the Seventh Circuit, he can do so by filing a notice of appeal in this Court.
FED. R. APP. P. 3(a). The current cost of filing an appeal with the Seventh Circuit is $505.00. The
filing fee is due at the time the notice of appeal is filed. FED. R. APP. P. 3(e). If Plaintiff cannot
afford to pay the entire filing fee up front, he must file a motion for leave to appeal in forma
pauperis (“IFP motion”). See FED. R. APP. P. 24(a)(1)(C). The IFP motion must set forth the
issues Plaintiff plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If he is allowed to
proceed IFP on appeal, he will be assessed an initial partial filing fee. 28 U.S.C. § 1915(b)(1). He
will then be required to make monthly payments until the entire filing fee is paid. 28 U.S.C. §
1915(b)(2).
IT IS SO ORDERED.
DATED: September 22, 2016
s/ MICHAEL J. REAGAN
U.S. Chief District Judge

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