Robinson, Jr. v. Sloop et al

Filing 7

ORDER DISMISSING CASE with prejudice for failure to state a claim and because the Defendants are entitled to qualified immunity. Plaintiff is also assessed a strike pursuant to § 1915(g). Signed by Judge J. Phil Gilbert on 5/17/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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JAMES ROBINSON, JR.,
Plaintiff,
vs.
T. SLOOP,
JOHN/JANE DOE,
JOHN/JANE DOE 2,
JOHN/JANE DOE 3,
JOHN/JANE DOE 4,
JOHN/JANE DOE 5,
JOHN/JANE DOE 6,
R. PHELPS,
W. WILLS,
C. KRAWCZYK,
JOHN/JANE DOE 7,
JOHN/JANE DOE 8,
JOHN/JANE DOE 9,
JOHN/JANE DOE 10
Defendants.

Case No. 17−cv–0261−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff James Robinson, Jr., an inmate in the United States Penitentiary Marion, brings
this action for deprivations of his constitutional rights by persons acting under the color of
federal authority pursuant to Bivens v. Six Unknown Agents of the Bureau of Narcotics, 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, 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). Frivolousness is an objective standard that refers
to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (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).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; this action is subject to summary dismissal.
The Complaint
The United States Air Force sentenced Plaintiff to a term of 90 years after a general court
martial on September 8, 1983. (Doc. 1-1, p. 7). Plaintiff served his sentence in military custody
until January 2006. Id. On January 4, 2006, Plaintiff’s paperwork was sent to the Designation
and Sentence Computation Center in Grand Prairie, Texas. Id. Plaintiff alleges that John/Jane
Does #7-9, employees of the Federal Bureau of Prisons, reviewed Plaintiff’s file, made his
original placement, and subsequently approved Plaintiff’s transfers. (Doc. 1-1, p. 5). Plaintiff
alleges that John/Jane Does, #7,8,9 knew that he was a military inmate, but placed Plaintiff at

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U.S.P. Terre Haute, where foreign nationals were also housed. (Doc. 1-1, p. 8). Plaintiff alleges
that John/Jane Does #7,8, and 9 also approved of subsequent transfers to F.C.I. McKean, F.C.I.
Elkton, F.C.I. Milan, and U.S.P Marion. (Doc. 1-1, pp. 9-12). Plaintiff alleges these placements
and transfers violated the Uniform Code of Military Justice (UCMJ) Article 12, 10 U.S.C. § 812
(“Article 12”). (Doc. 1-1, p. 8-12) Plaintiff further alleges that this violated his due process
rights under the Fifth Amendment. Id.
When Plaintiff arrived at U.S.P. Terre Haute, he came under the custody, care, and
control of John/Jane Doe #1 and 2. (Doc. 1-1, p. 8). Plaintiff alleges that John/Jane Doe #1 and
2 knew or should have known he was military prisoner, yet placed Plaintiff on a housing unit that
contained enemy prisoners and/or foreign nationals, assigned Plaintiff a job in immediate
association with enemy prisoners and/or foreign nationals, and required Plaintiff to eat with
enemy prisoners and/or foreign nationals. Id. Plaintiff alleges this violated Article 12. Id.
John/Jane Doe #1 and 2 ultimately requested that Plaintiff be transferred, a request that was
approved by John/Jane Doe #7-9. Id.
Plaintiff was transferred to F.C.I. McKean. (Doc. 1-1, p. 9). He was placed under the
custody and control of John/Jane Doe #3 and 4. Id. Plaintiff alleges that John/Jane Doe #3 and 4
knew or should have known that Plaintiff was a military inmate, but placed Plaintiff in a housing
unit that contained enemy prisoners, terrorists, and/or foreign nationals, assigned Plaintiff a job
in immediate association with enemy prisoners, terrorists, and/or foreign nationals, and required
him to eat in immediate association with enemy prisoners, terrorists, and/or foreign nationals. Id.
Plaintiff alleges that John Doe #3 and 4 violated Article 12, and by extension, Plaintiff’s due
process rights. Id. John/Jane Doe #3 and 4 ultimately submitted Plaintiff for a transfer to F.C.I.
Elkton, which Plaintiff alleges was similarly flawed. (Doc. 1-1, p. 9).

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Plaintiff was transferred to F.C.I. Elkton, where he was placed under the custody and
control of John/Jane Doe #5 and 6. (Doc. 1-1, p. 10). Plaintiff alleges that John/Jane Doe #5 and
6 knew or should have known that Plaintiff was a military inmate, but placed Plaintiff in a
housing unit that contained enemy prisoners, terrorists, and/or foreign nationals, assigned
Plaintiff a job in immediate association with enemy prisoners, terrorists, and/or foreign nationals,
and required him to eat in immediate association with enemy prisoners, terrorists, and/or foreign
nationals. Id. Plaintiff alleges that John/Jane Doe #5 and 6 violated USMJ Article 12, and by
extension, Plaintiff’s due process rights. Id. John/Jane Doe #5 and 6 ultimately submitted
Plaintiff for a transfer to F.C.I. Milan, despite the fact that they knew or should have known that
there were enemy combatants, terrorists, and/or foreign nationals. (Doc. 1-1, p. 11).
Plaintiff was transferred to F.C.I. Milan, where he was placed in the care, custody, and
control of R. Phelps and Church (listed on the docket as John/Jane Doe 10). Id. Defendants
Phelps and Church knew or should have known that Plaintiff was a military inmate, but despite
this they placed Plaintiff in an institutional job that required immediate association with enemy
prisoners, terrorists, and/or foreign nationals, and required him to eat in immediate association
with enemy prisoner, terrorists, and/or foreign nationals. (Doc. 1-1, pp. 11-12). Plaintiff alleges
that this violated Article 12, and his due process rights. (Doc. 1-1, p. 12). R. Phelps and Church
then submitted Plaintiff for a transfer to U.S.P. Marion. Id.
Upon arriving at Marion, Plaintiff was under the care, custody, and control of W. Wills
and C. Krawczyk. Id. Plaintiff alleges that Willis and Krawcyzk knew or should have known
that Plaintiff was a military inmate, but that despite that, they placed Plaintiff in a housing unit
that contained enemy prisoners, terrorists, and/or foreign nationals, gave him an institutional job
assignment that put him in immediate association with enemy prisoners, terrorists, and/or foreign

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nationals, and required him to eat in immediate association with enemy prisoners, terrorists,
and/or foreign nationals. (Doc. 1-1, p. 13). These actions allegedly violated Article 12, and by
extension, Plaintiff’s due process rights. Id. T. Sloop is the current acting Warden at Marion,
and as the Warden, Plaintiff alleges he has a duty to implement Article 12. Id.
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into 6 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 – Jane/John Doe #1 and 2 violated Plaintiff’s due process rights under
the Fifth Amendment by housing him, giving him a job, and forcing him to eat
with enemy prisoners, terrorists, and foreign nationals in violation of UCMJ
Article 12 at U.S.P. Terre Haute;
Count 2 – Jane/John Doe #3 and 4 violated Plaintiff’s due process rights under
the Fifth Amendment by housing him, giving him a job, and forcing him to eat
with enemy prisoners, terrorists, and foreign nationals in violation of UCMJ
Article 12 at F.C.I. McKean;
Count 3 – Jane/John Doe #5 and 6 violated Plaintiff’s due process rights under
the Fifth Amendment by housing him, giving him a job, and forcing him to eat
with enemy prisoners, terrorists, and foreign nationals in violation of UCMJ
Article 12 at F.C.I. Elkton;
Count 4 – R. Phelps and Church (John/Jane Doe #10) violated Plaintiff’s due
process rights under the Fifth Amendment by housing him, giving him a job, and
forcing him to eat with enemy prisoners, terrorists, and foreign nationals in
violation of UCMJ Article 12 at F.C.I. Milan;
Count 5 – W.Wills, C.Krawczyk, and T. Sloop violated Plaintiff’s due process
rights under the Fifth Amendment by housing him, giving him a job, and forcing
him to eat with enemy prisoners, terrorists, and foreign nationals in violation of
UCMJ Article 12 at F.C.I. Terre Haute;
Count 6 – John/Jane Doe # 7, 8, and 9 improperly placed Plaintiff initially and
approved transfers to institutions where Plaintiff would be in immediate contact
with enemy prisoners, terrorists, and foreign nationals in violation of UCMJ
Article 12, which violated Plaintiff’s due process rights under the Fifth
Amendment.
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As an initial matter, Plaintiff previously attempted to file this action as a habeas case,
which was dismissed because Plaintiff’s request for relief includes injunctive relief and monetary
damages. See Case No. 16-cv-1361-DRH. Plaintiff then filed the current Complaint on the
district court’s form. (Doc. 1). His list of Defendants on that form is consistent with the case
caption. (Doc. 1). However, Plaintiff attached a document entitled “Civil Rights Complaint” as
an exhibit and referred to it in lieu of drafting a statement of claim. (Doc. 1-1). In the “Parties”
section of that document, Plaintiff lists additional defendants not included on the Complaint
itself; but the narrative section of that document does not include any claims against those
defendants. (Doc. 1-1, pp. 3-5). The Court presumes this is a drafting error, and because the
statement of claim refers only to those who are currently listed as defendants in the Complaint
itself, the Court will not add any further defendants to the docket because of their mere inclusion
in the second list of defendants in Doc. 1-1. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (finding plaintiffs are required to associate specific defendants with specific claims
so that defendants are on notice of the claims against them); FED. R. CIV. P. 8(a)(2). To the
extent that Plaintiff was attempting to bring claims against any not currently listed on the case
caption, those claims fail for want of specificity.
Plaintiff’s Complaint fails for a number of reasons. Plaintiff has based this lawsuit on
UCMJ,1 Art. 12, which reads: “No members of the armed forces may be placed in confinement
in immediate association with enemy prisoners or other foreign nationals not members of the

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Plaintiff’s Complaint alleges that he began serving his sentence in 1983. While he has alleged that he is
a military member, if Plaintiff’s discharge has been executed, his status as a military member would have been
severed at that time and Plaintiff would have no entitlement to the relief he seeks here. United States v. Wilson, 73
M.J. 529, 533-34 (A.F. Ct. Crim. App. 2014) (“[T]he execution of such a discharge severs not only their status as
members of the armed forces, but also, unlike members serving confinement in military custody, ends their being
subject to the code.”)

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armed forces.” 10 U.S.C. § 812. Article 12 remains applicable to service members confined
outside the custody of the armed forces. United States v. Wilson, 73 M.J. 529, 533 (A.F. Ct.
Crim. App. 2014), aff’d, 73 M.J. 404 (C.A.A.F. 2014). “Immediate association” has been
defined in the military courts, although not the Seventh Circuit, as “being confined in a manner
so that [service personnel] would be directly connected or combined with captured foreign
personnel.” United States v. Wise, 64 M.J. 468, 474 (C.A.A. F. 2007). The Wise court found
that a service person was not in “immediate association” with a foreign national when he was
separated from Iraqi prisoners by a single strand of concertina wire. Id. The UCMJ does not
require that service persons and foreign personnel be kept in separate prisons, and the Wise court
was untroubled by the appellant’s assertions that he was kept within 15 feet of two Iraqis or that
he was close enough for them to attempt to engage him in conversation. Id. at 475-76; See also
Kuykendall v. Taylor, 285 F.2d 480, 481 (10th Cir. 1960).
As an initial matter, Plaintiff has not adequately pleaded that he was placed in immediate
association. Plaintiff’s allegations are conclusory. He makes the same allegations for each of
the prisons where he has been confined. But the allegations only raise a plausible inference that
Plaintiff was confined in the same institution as enemy prisoners or foreign nationals.2 And the
military courts have been unequivocal that sharing an institution with an enemy prisoner or
foreign national does not state a claim. Plaintiff has not alleged that he was ever confined in the
same cell as a foreign national or enemy. He has not recounted specific incidents where he came
into contact with a foreign national or enemy or provided the context for those contacts. On
these facts his allegations that Article 12 was violated are not plausible.
If failure to state a claim was the only problem with Plaintiff’s Complaint, the Court

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Article 12 does not use the word “terrorists” in its text, and so Plaintiff’s repeated reference to being
incarcerated with terrorists has no legal import at this stage.

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would grant Plaintiff leave to amend. However, the Court also finds that the defendants are
entitled to qualified immunity because it is not clear from the facts alleged that the Constitution
has been violated and because the right Plaintiff complains was violated has not been clearly
established.
Qualified immunity shields government officials from liability where “their conduct does
not violate ‘clearly established statutory or constitutional rights of which a reasonable person
would have known.’” Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity attempts to find a balance
between punishing irresponsible officials and protecting responsible officials from harassment,
distraction, and liability. Mordi v. Zeigler, 770 F.3d 1161, 1163 (7th Cir. 2014) (quoting Person
v. Callahan, 555 U.S. 223, 231 (2009)).
Courts use a two part test to determine whether a defendant is entitled to qualified
immunity: 1) whether the conduct complained of violates the constitution; 2) whether the right
was clearly established at the time the conduct occurred. Hardaway, 734 F.3d at 743 (citing
Pearson 555 U.S. at 232). Either element of the test may be reached first. Pearson, 555 U.S. at
236. The second element requires that the right be established in a particular and relevant way;
courts should avoid overgeneralizing in their analysis. Mordi, 770 F.3d at 1164. “The contours
of that right must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 630 (1987).
Although qualified immunity is an affirmative defense, the burden of meeting the two
part test rests on the plaintiff. Eversole v. Steele, 59 F.3d 710, 717 (7th Cir. 1995). The Supreme
Court has emphasized the importance of resolving qualified immunity questions at the earliest
stage possible of litigation. Saucier v. Katz, 533 U.S. 194, 202 (2001). The Court will dismiss

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on qualified immunity grounds where the facts of the complaint, taken as true, fail to allege the
violation of a clearly established right.
First, it has not been clearly established that the defendants Plaintiff has named are
amenable to suit. All of the defendants are employees of the Federal Bureau of Prisons. Plaintiff
has not cited to any case law, and the Court cannot find any case law that suggests non-military
members must enforce the military justice code.

By its own terms the statute applies to

“members of the Armed Forces.” 10 U.S.C. § 802. “Armed Forces” is defined to include “the
Army, Navy, Air Force, Marine Corps, and Coast Guard.” 10 U.S.C. § 101. The Bureau of
Prisons is not an included entity in § 802.

The Supreme Court has suggested that the UCMJ

cannot apply to non-military members because the authority for passing it lies in Article 1 of the
Constitution, which authorizes Congress to “raise and support armies” or punish “offenses
against the Law of Nations.” United States ex. rel. Toth v. Quarles, 350 U.S. 11, 13-14 (1955).
This rationale has precluded application of the UCMJ against civilian employees. McElroy v.
United States ex rel. Guagliardo, 361 U.S. 281, 284 (1960). Other cases have suggested that the
UCMJ cannot operate to compel a person not in military service to action. Rasmussen v.
Seamans, 432 F.2d 346, 349 (10th Cir. 1970) (finding provision of UCMJ that requires a
superior commanding officer to examine certain complaints does not apply to Air National
Guard personnel not in federal service); see also United States v. Escobar, 73 M.J. 871, 874
(A.F. Ct. Crim. App. 2014) (finding that the protections of Article 12 cannot be invoked where a
service person is being held by a foreign sovereign). The Court also notes that in the usual cases
invoking Article 12, the defendant is the United States. See, e.g., United States v. McPherson, 73
M.J. 393 (C.A.A.F. 2014). It is not clearly established that the named defendants are proper
parties to this action.

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Second, there is no case law that establishes that Plaintiff has a liberty interest in
enforcing Article 12 under the Due Process Clause of the Constitution. As an initial matter,
some judges have questioned whether Article 12 should even be applicable to military members
confined in civilian prisons stateside. Article 58 permits a military inmate to be confined “in any
penal or correctional institution under the control of the United States . . . subject to the same
discipline and treatment as persons confined or committed by the courts of the United States or
of the State.” 10 U.S.C. § 858. Case law on whether Article 12 trumps Article 58 is unsettled
and has never been interpreted by the 7th Circuit. Plaintiff cites to United States v. McPherson
for the proposition that Article 12 is not in conflict with Article 58 and that even prisoners
confined under Article 58 in a civilian facility must be kept separate from foreign nationals. 73
M.J. at 396; see also United States v. Wilson, 73 M.J. 529, 533 (A.F. Ct. Crim. App. 2014). But
the dissent in that case argued that an interpretation that allows Article 12 to trump Article 58
creates an absurd result by providing a disincentive for the Armed Forces to use the civilian
facilities and subverting the intention of Article 58. McPherson, 73 M.J. at 402 (Baker, C.J.
dissenting). It is certainly possible that the Air Force’s interpretation might not be adopted by
other courts to examine the matter.
More to the point, the Court can find no cases, either in this circuit or others, or in the
military courts, where a court has held that a prisoner has a due process liberty interest in the
protections of Article 12. The Fifth Amendment’s due process clause protects individuals
against deprivations by a federal actor of their life, liberty, or property. The Supreme Court has
said, as applied to prison conditions, that prisoners may have a liberty interest in being placed in
conditions that create an “atypical and significant hardship” when compared to the ordinary

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incidents of prison life. Sandin v. Connor, 515 U.S. 472, 484 (1995); Townsend v. Fuchs, 522
F.3d 765, 771 (7th Cir. 2008).
It is doubtful whether Article 12 creates a constitutional liberty interest. While the
language of the Article itself is mandatory, not discretionary, confinement with foreign nationals
does not pose an atypical and significant hardship when compared to the ordinary incident of
prison life.

Foreign nationals are frequently confined in federal prisons on immigration

violations and for other crimes. Plaintiff has also not alleged that he has actually suffered any
hardship or physical harm.3 All he has alleged is that he was confined in the immediate vicinity
of foreign nationals or enemy soldiers. These allegations do not plausibly suggest that Plaintiff
suffered an atypical and significant hardship. Plaintiff has therefore failed to establish that the
Constitution was violated, entitling the defendants to qualified immunity.
In fact, accepting Plaintiff’s position may cause him to be subjected to harsher conditions
of confinement. Other courts have pointed out that the foreign prison population in the United
States is so large and common that service members confined in non-military facilities are
spending more time in segregated quarters, where fewer privileges may be available, solely to
avoid mixing with foreign nationals—an unintended consequence of Article 12. Wilson, 73 M.J.
at 534 (noting that the appellant was placed in solitary confinement to avoid an Article 12
violation because the jail did not identify foreign nationals); see also Joshua R. Traeger, The
Confinement of Military Members in Civilian Facilities, 39 No. 1 The Reporter 31, 33 (2012)
(discussing conditions of confinement caused by multiple service members being confined in one
solitary confinement cell).

Plaintiff’s position is unusual in that most prisoners are seeking to

avoid segregation, while he is pushing an agenda that may have the consequence of sending him

3

The Prison Litigation Reform Act notably precludes recovery of compensatory damages where there has
not been a physical injury. 42 U.S.C. § 1997e(e).

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there. It also suggests that Plaintiff’s claims are not cognizable under the Due Process clause
because the Seventh Circuit has previously found that a federal prisoner placed in a less
restrictive environment was not entitled to any process. Furrow v. Marberry, 412 F. App’x 880,
883 (7th Cir. 2011).
Even if Article 12 does create a constitutional liberty interest, the lack of any case law on
this point means that the violation has not been clearly established. If the defendants were not
aware that they were violating the Constitution, then they are entitled to qualified immunity. As
the Court has found no cases that suggest that Plaintiff has a liberty interest in Article 12 or that
Defendants would be liable for failing to enforce that interest, the Court concludes that all
defendants are entitled to qualified immunity, and this case will be dismissed with prejudice.
Pending Motions
Plaintiff’s Motion for Leave to Proceed IFP will be addressed by separate order.
Disposition
IT IS HEREBY ORDERED that the case is DISMISSED with prejudice for failure to
state a claim and because the Defendants are entitled to qualified immunity. Plaintiff is also
assessed a strike pursuant to § 1915(g).
If Plaintiff wishes to appeal this dismissal, his notice of appeal must be filed with this
Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for
leave to appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal.
See FED. R. APP. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the
$505.00 appellate filing fee irrespective of the outcome of the appeal. See FED. R. APP. P. 3(e);
28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v.
Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.

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1998). Moreover, if the appeal is found to be nonmeritorious, Plaintiff may also incur another
“strike.” A proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e)
may toll the 30-day appeal deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed
no more than twenty-eight (28) days after the entry of the judgment, and this 28-day deadline
cannot be extended.
The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
DATED: May 17, 2017
s/J. Phil Gilbert
U.S. District Judge

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