Cox v. True et al
MEMORANDUM AND ORDER: ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Plaintiff Motion for a Preliminary Injunction will be referred to a United States Magistrate Judge for disposition. (Doc. 2). IT IS HEREBY ORDERED that Counts 1-4 s urvive threshold review against Defendants True, Blythe, Siereveld, Dunbar, Hill, Burgess, Baskerville, and Krawcyzk. TheClerk of Court is directed to add Thomas R. Kane in his official capacity to the docket as a defendant in Count 1, and for the pu rposes of injunctive relief. The Federal Bureau of Prisons is DISMISSED with prejudice. Counts 5-15 are DISMISSED without prejudice for failure to state a claim on which relief can be granted. IT IS ORDERED that the Clerk of Court shall prepare for D efendants True, Siereveld, Dunbar, Hill, Burgess, Blythe, Baskerville, Krawcyzk, and Kane: (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 Defendants place of employment as identified by Plaintiff. Signed by Judge J. Phil Gilbert on 7/18/2017. (tkm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FRANCIS SHAEFFER COX,
C. KRAWCYZK, and
FEDERAL BUREAU OF PRISONS
Case No. 17−cv–0338−JPG
MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Francis Schaeffer Cox, an inmate in U.S. 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) and
the Federal Torts Claims Act, 28 U.S.C. §§ 1346, 2671-2680. Plaintiff requests injunctive relief,
declarative relief, as well as nominal, punitive, and compensatory damages. This case is now
before the Court for a preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A,
(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
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
(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; portions of this action are subject to
Plaintiff is a federal prison inmate serving a 310 month sentence. (Doc. 1, p. 10). His
conviction is controversial, and his supporters have conducted mass mailings to raise funds for
his legal defense. Id. These mailings have been critical of the Federal Bureau of Prisons
(“BOP”) and the Defendants. Id. As much as $3 million dollars has been raised by these
Plaintiff was placed in the Communications Management Unit (“CMU”) at Marion in
February 2013. Id. Plaintiff was discharged from that unit on February 18, 2016, having gotten
1 incident report during that period. Id.
During the summer of 2016, Plaintiff got into a dispute with some of his supporters over
the disbursement of funds raised of his legal defense. (Doc. 1, p. 11). Plaintiff has been
involved in legal negotiations with that group of supporters, and has turned to a new group of
supporters to assist him in fund-raising. Id.
On June 20, 2016, Joshua Ligairi of Icarus Entertainment contacted Plaintiff about
securing the rights to Plaintiff’s life story for the purpose of making a documentary. Id. Hill, the
Intelligence Research Specialist for Marion, confronted Plaintiff over the correspondence from
Ligairi. Id. Hill threatened Plaintiff with new charges if he gave his story to a publisher. Id.
She also stated that the Counter-Terrorism Unit (“CTU”) would put him back in CMU, and
would otherwise be displeased if Plaintiff’s story got out. Id. Plaintiff believes that Dunbar,
Siereveld, Burgess, Blythe, Baskerville and others are members of the CTU. Id. Ultimately,
Plaintiff was deprived of the opportunity to participate in the film, which has since been made.
(Doc. 1, p. 12).
On August 9 or 10, 20161 Blythe, an intelligence analyst, wrote incident report #2882521
against Plaintiff. Id.; (Doc. 1-1, p. 15). The incident report alleged that Plaintiff had attempted
to transfer money to another inmate, Gino-Gabino Andolini through an attorney in Kerrville
Texas. (Doc. 1, p. 12). Plaintiff alleges that the letter was forged, but claims that Blythe wrote
the ticket in retaliation for the correspondence with Ligairi. Id. Plaintiff further alleges that the
retaliation continued when Krawcyzk, acting as a Unit Disciplinary Committee (“UDC”),
Plaintiff’s Complaint states 2017, but the Court presumes this was an error.
referred incident report #2882521 to a Disciplinary Hearing Officer despite knowing that it was
baseless. Id. Plaintiff alleges the conspiracy continued 2 months later when Hill and Burgess,
acting as a UDC found Plaintiff involved in the incident without sufficient evidence. (Doc. 1, p.
On August 30, 2016, Dunbar, the Assistant Regional Director for the BOP North Central
Region, placed Cox in the CMU once again without due process. (Doc. 1, pp. 2, 12-13).
Plaintiff alleges that Dunbar acted out of a conspiracy against him. (Doc. 1, p. 13).
Plaintiff caught another incident report, #2914557, from Blythe on November 3 or 4th,
2016. Id. That report alleged that Plaintiff used a pre-approved phone call to call into the Wiley
Drake radio program. Id.; (Doc. 1-1, p. 16). Plaintiff alleges that the report was without
evidentiary basis and in furtherance of the conspiracy. (Doc. 1, p. 13). Hill and Burgess served
as the UDC on that report and recommended that it be referred to the Disciplinary Hearing
Officer, despite knowing that it was baseless, where it remains pending. Id.
Plaintiff received incident report #2931834 on December 22, 2016. Id.; (Doc. 1-1, p.
17). The report alleged that Plaintiff was operating a business in violation of BOP PS 5270.09
Code 334. (Doc. 1, p. 13). Plaintiff alleges that he was not operating a business, but rather
attempting to gain control of funds raised for his legal defense, raise additional funds for his
legal defense, and communicate with his supporters. Id. Plaintiff alleges that Siereveld and
Blythe wrote the report, despite knowing that it was baseless. Id. On December 28, 2016, Hill
and Baskerville, acting as UDC, found the report substantiated, despite knowing that the report
was without evidentiary foundation. (Doc. 1, p. 14).
Plaintiff alleges that the retaliation continued from December 22, 2016 through January
9, 2016 when Siereveld, and True began to deny Plaintiff his mail on the theory that the mail was
part of Plaintiff’s efforts to conduct a business. (Doc. 1, pp. 13-14). Plaintiff caught another
incident report, #2967316 on March 27, 2017 for writing a letter to a supporter requesting that
the supporter conduct a fund-raising mailing.
(Doc. 1, p. 14).
Plaintiff alleges that this
disciplinary report was also without evidentiary foundation. Id.
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into 15 counts.2 These designations supersede Plaintiff’s designations. 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 following claims survive threshold review:
Count 1 – The Federal Bureau of Prisons’ policy statements on “conducting a
business,” BOP PS 5265.14 and BOP PS 5270.09 are facially void for vagueness
and as-applied to Plaintiff by Defendants True, Siereveld, Dunbar, Hill, Burgess,
Blythe, Baskerville, and Krawcyzk;
Count 2 – Defendants Blythe, True, and Siereveld denied Plaintiff his First
Amendment rights when they disciplined him and withheld specific items of
Plaintiff’s mail for allegedly conducting a business between December 22, 2016
and January 9, 2017;
Count 3 – Defendant Hill violated Plaintiff’s First Amendment rights when she
instructed Plaintiff not to communicate with Ligairi and in fact caused Plaintiff
not to communicate further with Ligairi
Count 4 – Defendant Hill retaliated against Plaintiff for attempting to
communicate with the media in violation of the First Amendment when she
approved discipline against him, as recounted in disciplinary report #2882521,
#2914457, and #2931834;
The Court did not understand Plaintiff to be making an independent claim based on the incident described
in conduct report #2914557 regarding his telephone call to the Wiley Drake radio show, because Plaintiff did not
include facts regarding that incident in his statement of claim, other than to incorporate the disciplinary report itself.
The Court understood Plaintiff to be alleging that the report was written in retaliation. If Plaintiff intended to also
bring a stand-alone claim outside of the retaliation claim, he should file an amended complaint incorporating the
Plaintiff has also attempted to bring other Counts, but for the reasons elucidated below,
these claims do not survive threshold review.
Count 5 – Defendants True, Siereveld, Dunbar, Hill, Burgess, Blythe,
Baskerville, and Krawcyzk conspired to violate Plaintiff’s First and Fifth
Amendment rights in violation of 42 U.S.C. § 1985(3) when they retaliated
against Plaintiff for receiving a letter from Ligairi;
Count 6 – Defendants Dunbar, True, and Siereveld were negligent in failing to
prevent the conspiracy amongst True, Siereveld, Dunbar, Hill, Burgess, Blythe,
Baskerville, and Krawcyzk in violation of Plaintiff’s First and Fifth Amendment
rights pursuant to 42 U.S.C. § 1986;
Count 7 – Defendant Dunbar denied Plaintiff his due process rights under the
Fifth Amendment when she transferred him from USP Marion’s general
population to the Communications Management Unit on August 30, 2016;
Count 8 – Defendant Dunbar retaliated against Plaintiff for the exercise of his
First Amendment rights when she transferred him from USP Marion’s general
population to the Communications Management Unit on August 30, 2016;
Count 9 – Defendant Burgess retaliated against Plaintiff when he substantiated
incident reports #2882521 and #2914557 in violation of Plaintiff’s First
Amendment Rights without sufficient evidence;
Count 10 – Defendant Baskerville retaliated against Plaintiff when he
substantiated incident report #2931834 in violation of Plaintiff’s First
Amendment Rights without sufficient evidence;
Count 11 – Defendant Krawcyzk retaliated against Plaintiff when he
substantiated incident report #2882521 in violation of Plaintiff’s First
Amendment Rights without sufficient evidence;
Count 12 – Defendant Burgess deprived Plaintiff of his due process rights in
violation of the Fifth Amendment when he substantiated incident reports
#2882521, #2914457, and #2931834 without sufficient evidence;
Count 13 – Defendant Krawcyzk violated Plaintiff’s due process rights when he
referred the incident report #2882521 to a Disciplinary Hearing Officer despite
knowing that the report was unsupported by evidence;
Count 14 – Defendant Baskerville violated Plaintiff’s due process rights under
the Fifth Amendment when he substantiated incident report #2931834 without
Count 15 – Defendant Blythe denied Plaintiff his due process rights under the
Fifth Amendment when she issued incident reports #2882521, #2914557, and
#2967316; and Blythe and Siereveld denied Plaintiff his due process rights when
they jointly issued incident report #2931834, despite knowing the reports were
false in violation of the Fifth Amendment.
As an initial matter, Plaintiff has indicated that he brings this suit pursuant to both 28
U.S.C. § 1331 and the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680. But all of
Plaintiff’s claims appear to allege constitutional violations; there is no claim that sounds in state
tort law. Additionally, Plaintiff has not named the United States as a defendant. For this reason,
the Court will only analyze the claims under a Bivens theory of liability pursuant to the subject
matter jurisdiction conferred by 28 U.S.C. § 1331, and will disregard the references to the
Federal Tort Claims Act.
In Count 1, Plaintiff presents claims that prison regulations were unconstitutional as
applied to him and vague on their face. The distinction between an as-applied challenge and a
facial challenge turns only on the choice of remedy available, “not on what must be pleaded in
the complaint.” Six Star Holdings, LLC v. City of Milwaukee, 821 F.3d 795, 803 (7th Cir. 2016).
Plaintiff has asked the Court to declare 2 BOP regulations void and impose injunctive relief on
that basis; he also requests compensatory damages. Id. (“[A] facial challenge usually invites
prospective relief, such as an injunction, whereas an as-applied challenge invites narrower,
retrospective relief, such as damages”). It is therefore appropriate to view Plaintiff’s claims
under both the as-applied and facial challenge standards because he has requested both injunctive
relief and damages.
There are 2 regulations at issue: BOP Regulation 5265.14, § 540.14(d)(4) permits the
Warden to reject correspondence sent to or from an inmate on the grounds that it contains
directions for a business; Plaintiff also takes issue with BOP regulation 5270.09, which
categorizes conducting a business as a moderately severe level disciplinary infraction. Plaintiff
alleges that he was disciplined and letters were withheld from him on the basis of these
regulations. He further alleges that these actions were taken because he was attempting to
communicate with various groups of supporters about efforts to raise funds for his continued
legal proceedings over his convictions.
The prohibition on conducting a business has been found to be a permissible restriction
on prisoners’ residual freedom. King v. Federal Bureau of Prisons, 415 F.3d 634, 636 (7th Cir.
2005). But Plaintiff alleges that he is not actually conducting a business. Instead, the regulations
have been unreasonably interpreted to prevent Plaintiff from writing to his supporters, receiving
their mail in return, and directing the disposition of funds raised for his legal defense. Plaintiff’s
claim turns on whether the regulations are a permissible infringement on his First Amendment
rights to communicate in general.
The Supreme Court has delineated 4 factors for determining whether a specific regulation
or practice serves a legitimate penological interest. Turner v. Safely, 482 U.S. 78, 89-90 (1987).
The primary factor is whether a valid, rational connection exists between the restriction and a
legitimate interest. Id. A restriction on speech that fails to meet this connection fails under
Turner. See Shaw v. Murphy, 532 U.S. 223, 229-30 (2001). The other factors relevant in
determining a restriction's reasonableness include whether the inmate has alternative means of
exercising the right; the impact accommodation of the asserted right would have on guards, other
inmates, and prison resources; and the absence of a reasonable alternative to the regulation or
practice. Turner, 482 U.S. at 90.
To state a vagueness challenge, a plaintiff must show that the regulation fails to define
the relevant conduct with sufficient definiteness so that the average person would understand
what conduct is forbidden. Koutnik v. Brown, 456 F.3d 777, 783 (7th Cir. 2006) (citing Fuller
by Fuller v. Decatur Pub. Sch. Bd. of Educ. Sch. Dist. 61, 251 F.3d 662, 666 (7th Cir. 2001).
Unlike an as-applied challenge, a plaintiff bringing a vagueness challenge must show that the
law is impermissibly vague in all of its applications. Koutnik, 456 F.3d at 783. The context in
which the regulation is promulgated is also significant; specifically, prisons in particular are
permitted to have “some open-ended quality” in their regulations to preserve maximum
flexibility in addressing safety and security. Borzych v. Frank, 439 F.3d 388, 392 (7th Cir.
At the pleading stage, the Court finds that asking for donations to cover legal fees, and
communicating with those tasked with managing that money, which notably was not going
directly to Plaintiff, would not necessarily appear to the average person to fall under the rubric of
“conducting a business.” The Court finds that Plaintiff has adequately stated a claim on the
grounds that the regulations at issue are unconstitutionally vague and have been applied to him in
an unreasonable matter. However, Plaintiff has named the Bureau of Prisons, presumably on this
count for the purposes of injunctive relief. The Bureau of Prisons is not a proper defendant.
King, 415 F.3d at 636. Accordingly the Court adds Thomas R. Kane, the Acting Director of the
Federal Bureau of Prisons, as a defendant for the purposes of Plaintiff’s facial challenge and
request for injunctive relief only. The Court also finds that Warden True is an appropriate party
for injunctive relief. As to the as-applied challenge, because it appears that Siereveld, Dunbar,
Hill, Burgess, Blythe, Baskerville, and Krawcyzk all took action on the basis of the disputed
regulations, that claim will proceed against them.
In Count 2, Plaintiff has alleged that True and Siereveld interfered with his mail in
violation of the First Amendment, and that Blythe wrote disciplinary reports purporting to justify
the interference. Plaintiff has a limited First Amendment right in receiving and sending mail.
Thornburgh v. Abbott, 490 U.S. 401 (1989); Turner v. Safley, 482 U.S. 78 (1987).
reasonableness of a restriction on outgoing mail turns on whether the censorship is justified by a
substantial penological interest and if the means employed are no more intrusive than necessary
to achieve that goal. Procunier v. Martinez, 416 U.S. 396, 413 (1974) overruled on other
grounds Thornburgh v. Abbott, 490 U.S. 401, 412-13 (1989); Koutnik v. Brown, 456 F.3d 777,
781 (7th Cir. 2006); see also Gaines v. Lane, 790 F.2d 1299 (7th Cir. 1986). As to the incoming
mail, the standard is different. Pursuant to Turner, the regulations regarding incoming mail must
only be “reasonably related to legitimate penological interests.” 482 U.S. at 89.
The treatment of Plaintiff’s incoming and outgoing mail implicates his First Amendment
He has identified at least 7 letters3 that were intercepted by prison authorities for
allegedly violating the prohibition on running a business. Plaintiff then received disciplinary
reports written by Blythe to justify the interception. Although he has not specifically alleged that
any of his outgoing mail was withheld, the Complaint suggests that the Defendants have
disapproved of his efforts to communicate with his supporters on this subject, which could have
plausibly chilled Plaintiff’s speech. Plaintiff has also alleged that he has wrongfully been placed
Specifically, Plaintiff alleges that True and Siereveld denied Plaintiff the right to receive 1) a December
22, 2016 letter from Ryan Mobley; 2) a December 22, 2016 letter from Liz Sarver; 3) a December 22, 2016 letter
from Angela Clemmons; 4) a January 3, 2017 letter from Rudy Davis; 5) a January 5, 2017 letter from Angela
Clemmons; 6) a January 5, 2017 letter from Liz Sarver; and 7) a January 9, 2017 letter from Angela Clemmons.
(Doc. 1, p. 9). Plaintiff’s Memo in support of the Complaint alleges that 9 pieces of mail were withheld, but does not
get into specifics. (Doc. 1-2, p. 8).
in the CMU, suggesting that his communication, both incoming and outgoing, has been subjected
to higher scrutiny, possibly due to Plaintiff’s activities with his fundraisers. At this time,
Plaintiff has adequately alleged that Blythe, True, and Siereveld interfered with his First
Amendment rights, and Count 2 will be permitted to proceed against them.4
In Count 3, Plaintiff has alleged that Hill told him he could not communicate with Ligairi
because she believed that Plaintiff would benefit from his crime by participating in the
documentary, which is prohibited. Although the Ligairi letter acknowledges that Plaintiff cannot
profit from his crime and suggests investigating alternative means of remuneration, Plaintiff
alleges that his discussions with Ligairi had never reached a stage where money was to be
exchanged. Given as Plaintiff alleges that he was not permitted to respond to the letter, this
allegation seems plausible.
Plaintiff has also implied that he would have been willing to
participate in the film without payment. Additionally, the Court is concerned that Plaintiff was
prohibited from communicating with a member of the media by letter, as many decisions have
assumed that this option remains available to all prisoners at all times.
Like other First Amendment rights, an inmate’s right to access the media is limited and
defined by his status as a prisoner. Pell v. Procunier, 417 U.S. 817, 822 (1974). Any regulation
on correspondence between press and prisoners must be “reasonably related to legitimate
Turner, 482 U.S. at 91.
In Pell, the Supreme Court upheld a prison
regulation that limited in-person media interviews with specific inmates, but the holding was
grounded in part on the assumption that alternative means, like letter writing and phone calls
The Court does not understand Plaintiff to be alleging that the regulations impermissibly infringe on his
right to counsel pursuant to the Sixth Amendment or his due process rights under the Fifth Amendment. To the
extent that the Complaint contains this allegation, it is dismissed without prejudice for failure to state a claim. If
Plaintiff intended to raise those grounds, he should file an amended complaint containing facts that would show such
claims are plausible.
were available for communication with the press.
417 U.S. at 825-26; See also Saxbe v.
Washington Post Co., 417 U.S. 843, 850 (1974) (applying Pell analysis to the Federal prison
system); Hammer v. Ashcroft, 570 F.3d 798, 804-05 (7th Cir. 2009).
Plaintiff has alleged that Hill prohibited him from communicating with a member of the
media at all, and that her threat chilled his speech so that he did not communicate with a member
of the media. Although Plaintiff has alleged that Hill cited to “profit” as her rationale, it is not
clear whether Hill was relying on the BOP regulations otherwise at issue in this case, other
regulations regarding media access, or her own subjective judgment. Regardless, Plaintiff has
made a plausible allegation that Hill’s prohibition was unreasonable as a blanket prohibition.
Accordingly, Plaintiff’s claim against Hill for denying him his First Amendment rights will
proceed in Count 3.
Plaintiff has also alleged that Hill retaliated against him for receiving the letter in Count
4. To succeed on a First Amendment retaliation claim, a plaintiff must prove 1) that he engaged
in conduct protected by the First Amendment; 2) that he suffered a deprivation that would likely
deter First Amendment activity in the future; and 3) that the protected conduct was a “motivating
factor” for taking the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).
As the Court has determined that Hill’s conduct regarding the Ligairi correspondence
may have infringed on Plaintiff’s First Amendment rights, it is clear that Plaintiff has plausibly
alleged that he engaged in conduct protected by the First Amendment. Plaintiff has also alleged
that Hill was involved in multiple disciplinary proceedings against him in the months after their
confrontation. Moreover, Plaintiff has alleged that he did not respond to the correspondence as a
result of Hill’s conduct. At this state, Plaintiff has alleged a viable retaliation claim against Hill,
and Count 4 will be allowed to proceed.
None of Plaintiff’s other claims survive threshold review. In Count 5, Plaintiff has
alleged that that he was subjected to a conspiracy to retaliate against him and deny him his rights
pursuant to 42 U.S.C. § 1985. To make a claim of conspiracy under § 1985(3), a plaintiff must
show 1) a conspiracy; 2) for the purpose of depriving a person or class of persons equal
protection under the laws; 3) an act in furtherance of the conspiracy; and 4) an injury to person or
property or a deprivation of a right or privilege granted to U.S. citizens.” Green v. Benden, 281
F.3d 661, 665 (7th Cir. 2002) (citing Hernandez v. Joliet Police Dep’t, 197 F.3d 256, 263 (7th
Cir. 1999). To establish the second prong, it is necessary to show a class-based discriminatory
animus, like racism. Xiong v. Wagner, 700 F.3d 282 (7th Cir. 2012). The plaintiff must also
show that there was agreement between the conspirators to cause the harm complained of; the
general nature and scope of the conspiracy must be known to each conspirator. Id.
Additionally, federal officials are not liable in their official capacities under § 1985(3);
they may only be sued in their official capacities. See Benson v. United States, 969 F.Supp 1129,
1135 (N.D. Ill. 1997). The Court will presume that Plaintiff’s conspiracy claim is directed at the
defendants in their individual capacities only, and to the extent that it is not, those claims are
dismissed with prejudice. The Seventh Circuit has also suggested that § 1985(3) conspiracy
claims are superfluous in situations where all of the named defendants are state actors because
the purpose of the statute is to permit recovery from a private actor who has conspired with state
actors. Fairley v. Andrews, 578 F.3d 518, 526 (7th Cir. 2009); See also Turley v. Rednour, 729
F.3d 645, 649, n. 2 (7th Cir. 2013). All of the defendants here are BOP employees, and so this is
precisely the situation where the conspiracy allegation adds nothing to the underlying claims.
Plaintiff attempts to get around this by citing to Hartman v. Board of Trustees of Community
College Dist. No. 508, 4 F.3d 465 (7th Cir. 1992) for the proposition that the intra-corporate
conspiracy theory does not apply under 18 U.S.C. §§ 241-242, but criminal statutes like §§ 241242 do not create individually enforceable rights, and so §§ 241-242 is not relevant here.
Chicago Title & Land Trust Co. v. Rabin, No. 11-cv-425, 2012 WL 266387 at *5 (N.D. Ill.
January 30, 2012); Lovelace v. Whitney, 684 F.Supp. 1438, 1441 (N.D. Ill. 1988) aff’d sub nom.
Lovelace v. Hall, 886 F.2d 332 (7th Cir. 1989).
But the real flaw in Plaintiff’s conspiracy allegation is that he has not alleged that he is
part of a protected class. To get around this, Plaintiff has argued that his equal protection claim
is a “class of one.” However, that theory has been foreclosed by the relevant case law; Plaintiff
cannot proceed under § 1985(3) as a class-of-one. See Griffin v. Breckenridge, 403 U.S. 88, 102
(1971) (“[T]here must be some racial or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ action.”); Smith v. Gomez, 550 F.3d 613, 617
(7th Cir. 2008) (finding plaintiff’s status as a parolee is not considered a “suspect class” for
equal-protection purposes); Bowman v. City of Franklin, 980 F.2d 1104, 1109 (7th Cir. 1992)
(rejecting plaintiff’s allegations of conspiracy where plaintiff failed to alleged that their proposed
class had racial or other class-based characteristics, and specifically rejecting plaintiffs’
arguments that they had adequately pleaded that they were part of a geographic or political
class); Thorncreek Apts. I, LLC v. Village of Park Forest, 08 C 869, 08 C 1225, 08 C 4303, 2015
WL 2444498 (N.D. Ill. May 20, 2015); see also Underfer v. Univ. Toledo, 36 F. App’x 831, 83334 (6th Cir. 2002) (holding that a class of one claim cannot underlie a § 1985(3) claim); Grimes
v. Smith, 585 F.Supp. 1084, 1089-90 (N.D. Ind. 1984) (Posner, J.) (rejecting a § 1985(3) claim
because “there is no racial or similar hostility behind the conspiracy in the present case that
would take it out of the category of purely political conspiracies), aff’d 776 F.2d 1359 (7th Cir.
1985); Snyder v. Smith, 7 F.Supp.3d 842, 850 (S.D. Ind. 2014) (“Neither the Supreme Court nor
the Seventh Circuit has credited a ‘class of one’ conspiracy claim under Section 1985(3), and
such a broad interpretation would be inconsistent with the Supreme Court’s command that the
statute should be construed in a limited manner.”)
Even if Plaintiff could proceed under a class-of-one theory, he has not adequately pleaded
it. A plaintiff states a class of one claim where the plaintiff alleges that he has been treated
differently from others similarly situated and there is no rational basis for the difference in
treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Plaintiff has only alleged
that he is part of a class of individuals seeking to exercise their First Amendment rights; he has
not alleged that he has been treated differently than any similarly situated individuals or
mentioned similarly situated individuals in any manner other than a conclusory statement that he
proceeds as a class of one. As Plaintiff has not adequately alleged the requisite intent for a §
1985(3) claim, his conspiracy claim in Count 5 will be dismissed without prejudice.
As Plaintiff has failed to state a conspiracy claim, his claim against Dunbar, True, and
Siereveld in Count 6 for negligent failure to prevent a conspiracy must also be dismissed.
Section 1986 is a companion statute to § 1985(3) and permits recovery against “every person
who, having knowledge that any of the wrongs conspired to be done, . . . are about to be
committed, and having the power to prevent or aid in preventing the commission of the same,
neglects or refuses to do so . . .” Bell v. City of Milwaukee, 746 F.2d 1205, 1233 (7th Cir. 1984)
overruled on other grounds by Russ v. Watts, 414 F.3d 783 (7th Cir. 2005). As the liability in §
1986 is completely dependent and derivative of the liability under § 1985(3), the failure of
Plaintiff’s § 1985(3) claim likewise dooms his negligent failure to prevent the conspiracy claim.
Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 202 (7th Cir. 1985). Count 6 will also
be dismissed with prejudice.
Next, Plaintiff has alleged in Count 7 that his due process rights were violated when
Dunbar re-designated him to the CMU on August 30, 2016. Not every placement decision
implicates the due process clause; rather courts examine whether the new placement imposes an
“atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
Sandin v. Conner, 515 U.S. 472, 483-84 (1995).
When there is no change in the
conditions of confinement; no process is due. Lagerstrom v. Kingston, 463 F.3d 621, 623 (7th
Cir. 2006); see e.g., Furrow v. Marberry, 412 F. App’x 880, 882-83 (7th Cir. 2011) (no due
process claim when a prisoner housed under restrictive conditions was moved to slightly better
BOP regulations describe CMUs as “a general population housing unit where inmates
ordinarily reside, eat, and participate in all educational, recreational, religious, visiting, unit
management, and work programming within the confines of the CMU . . . [for the purpose of]
enabl[ing] staff to more effectively monitor communication between inmates in CMUs and
persons in the community.” 28 C.F.R. §§ 540.200 (b) & (c). At the present moment, it is an
open legal question whether CMUs pose atypical and significant hardships. While the 7th
Circuit has not addressed the question, see Amawi v. Walton, No. 13-cv-0866-JPG-RJD, 2016
WL 7364768 (S.D. Ill. November 17, 2016) (recommending that the district judge grant
qualified immunity to defendants on a due process claim regarding placement in the CMU in part
because the 7th Circuit had not addressed the issue), other courts have found that CMU
placement satisfies the “atypical and significant hardship” standard. Aref v. Lynch, 833 F.3d
242, 257 (D.C. Cir. 2016). The Court will not wrestle with the question of whether the CMU at
Marion poses a significant and atypical hardship at this point because Plaintiff has not alleged
that it has, other than to provide a sole conclusory citation to Aref. Aref is not binding on this
court, and even if it were, Plaintiff must still allege that the conditions of confinement he
experienced met the “significant and atypical” standard. Instead his Complaint is completely
silent on the specific conditions in the CMU that he endured. Without these facts, Plaintiff’s
allegation does not cross the line from conclusory to plausible. Count 7 will be dismissed from
this case without prejudice for failure to state a claim.
Plaintiff has also alleged that Dunbar transferred him to the CMU as part of a conspiracy
to retaliate against him for receiving the Ligairi correspondence in Count 8. Having rejected
Plaintiff’s conspiracy claims, the retaliation claims against the individual defendants must stand
or fall on their own. The Court finds that Plaintiff’s allegations of retaliation are conclusory as to
Dunbar. Plaintiff repeatedly states that Dunbar was retaliating against him, but he does not
allege that Dunbar knew about the receipt of the Ligairi correspondence or was involved in any
way in prohibiting Plaintiff from communicating with Ligairi. Plaintiff has not alleged that he
engaged in any other protected conduct that could form the basis for a retaliation claim with
regards to Dunbar. Thus, Plaintiff has not adequately identified any protected conduct that could
provide the basis for Dunbar’s retaliation.5 Accordingly, Plaintiff’s claim that he was transferred
to the CMU in retaliation for the Ligairi correspondence must be dismissed without prejudice at
this time for failure to state a claim.
Next, the Court will analyze Counts 9-11 together, as they all allege that Defendants
other than Hill retaliated against Plaintiff through official disciplinary action. Plaintiff alleges
that Burgess retaliated against him when he found Plaintiff involved in incident report #2882521,
in which Krawcyzk also participated, and #2914557. He likewise alleges that Baskerville
The disciplinary reports attached to the Complaint include recommendations regarding changes in custody
levels, but at this time, there is no other indication in the records that authorities acted on those recommendations or
that they played a role in Plaintiff’s CMU housing assignment.
retaliated against him when he found incident report #2931834 substantiated. Incident report
#2882521 addresses correspondence that the prison intercepted when it was returned to sender.
(Doc. 1-1, p. 15). Plaintiff was listed as the sender, and the correspondence was addressed to an
attorney and marked as legal mail. Id. However, the correspondence actually directed the
attorney to send funds to another inmate. Id.
That incident report is signed by Hill, Burgess,
and Krawcyzk. Id. Incident report #2914557 addresses an incident where Plaintiff called into a
live radio program and gave an interview without prior approval. (Doc. 1-1, p. 16). The
signature line is cut off.
Finally, incident report #2931834 alleges that Plaintiff’s
correspondence to his supporters is impermissibly conducting a business, as further addressed in
Counts 1 and 2. (Doc. 1-1, p. 16).
Although the Court has found that Plaintiff has stated a claim against Hill for retaliation,
the Court finds that the allegations are insufficient as to Burgess, Krawcyzk, and Baskerville.
Plaintiff points to the Ligairi correspondence as the basis for his retaliation claims, but as
Plaintiff has not adequately pleaded a conspiracy claim, in order to state a retaliation claim
against Burgess, Krawcyzk or Baskerville, he has to state that they knew that Plaintiff engaged in
conduct protected by the First Amendment and retaliated against him on that basis. There is no
allegation that Burgess, Krawcyzk, and/or Baskerville knew about the Ligairi correspondence or
that Hill communicated with any of them about it. There is also no allegation that Burgess,
Krawcyzk, and/or Baskerville were retaliating against Plaintiff based on any other incident.
Accordingly, Counts 9-11 must be dismissed without prejudice for failure to state a claim.
Plaintiff’s allegations in Counts 12-14 are that Defendants Burgess, Krawcyzk, and
Baskerville violated Plaintiff’s due process rights based on various incident reports and the
subsequent discipline. All of these claims fail for the same reasons, and so the Court will
analyze them together. As discussed above, Plaintiff must allege that he was deprived of a
liberty interest in order to state a due process claim. Plaintiff has not alleged that he was
deprived of an interest in life, liberty or property as a result of the disciplinary reports, and while
it is possible that he suffered such a deprivation, the Court will not speculate without a concrete
allegation. That alone would be enough to dismiss these claims without prejudice for failure to
state a claim.
But even if Plaintiff had alleged that he was deprived of a liberty interest, he has not
made a sufficient allegation that he was deprived of due process of law. In Wolff v. McDonnell,
418 U.S. 539 (1974), the Supreme Court set out the minimal procedural protections that must be
provided to a prisoner in disciplinary proceedings in which the prisoner loses good time, is
confined to a disciplinary segregation, or otherwise subjected to some comparable deprivation of
a constitutionally protected liberty interest. Id. at 556-572.
Wolff required that inmates facing disciplinary charges for misconduct be
accorded  24 hours’ advance written notice of the charges against them;  a
right to call witnesses and present documentary evidence in defense, unless doing
so would jeopardize institutional safety or correctional goals;  the aid of a staff
member or inmate in presenting a defense, provided the inmate is illiterate or the
issues complex;  an impartial tribunal; and  a written statement of reasons
relied on by the tribunal. 418 U.S. at 563-572.
Hewitt v. Helms, 459 U.S. 460, 466 n.3 (1983) overruled on other grounds Sandin, 515
The Supreme Court has also held that due process requires that the findings of the disciplinary
tribunal must be supported by some evidence in the record. Superintendent v. Hill, 472 U.S. 445,
455 (1985); McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999).
Ascertaining whether this standard is satisfied does not require examination of the
entire record, independent assessment of the credibility of witnesses, or weighing
of the evidence. Instead, the relevant question is whether there is any evidence in
the record that could support the conclusion reached by the disciplinary board.
Hill, 472 U.S. at 455-56.
Plaintiff’s allegation as to each of his due process claims is that the defendants took
action against him despite knowing that there was no evidentiary basis for the findings. (Doc. 12, p. 8). However, it is clear from the exhibits and the Complaint that the discipline Plaintiff
received was supported by “some evidence.” Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir.
2007) (finding that even a meager amount of supporting evidence is sufficient to satisfy Wolff).
For example, as to incident report #2882521, Plaintiff alleges that he actually did write to
Attorney Pearson, but that the correspondence therein regarding another inmate was forged.
Plaintiff does not deny that he wrote to the attorney or that when the mail was returned, it
contained a request that Pearson forward money to another inmate. What he contests is that the
disciplinary committee did not find his testimony credible when he stated that the
correspondence directing the attorney to forward the money was a forgery. This is a credibility
determination, not a lack of evidence.
See Superintendent, Massachusetts Correctional
Institution, Walpole v. Hill, 472 U.S. 445, 455-56 (1985) (evaluation of the “some evidence”
standard does not require courts to independently evaluate credibility). Plaintiff cannot claim
that the report was written without evidence or that the defendants made their decision without
evidence because he does not deny that he wrote to the attorney, which is “some evidence” of
attempting to send money to another inmate.
The same holds true for the other disciplinary reports at issue here. The next report at
issue, #2914557, is for calling into a live radio show. While Plaintiff has alleged in a conclusory
fashion he was also disciplined based on this report without some evidence, he has not alleged
that he did not call into the Wiley Drake radio show. In fact, the disciplinary report contains a
link to the radio show at issue, and the radio show features a caller purported to be Schaeffer
Cox, the Plaintiff in this action. http://www.ustream.tv/recorded/92595918 (34.34 minute mark)
(last visited July 5, 2017). While the Court does not presume to state conclusively that Plaintiff
did call into the radio show, the existence of the website shows that there was “some evidence”
to support the factual allegations at issue in this report.
The last 2 reports both address Plaintiff’s attempts to communicate with his supporters
regarding fund raising and the use of those funds for legal purposes. This is the very conduct
that Plaintiff alleges Defendants interfered with in violation of his First Amendment rights. By
putting the interpretation of the relevant regulations at issue, Plaintiff is essentially conceding
that he engaged in the conduct.
Why else would he contest the regulations?
allegations that there was no evidence in support of incident reports are patently frivolous
because he has alleged that his conduct at issue in the reports did not violate prison regulations in
other counts. Clearly, there was “some evidence” to justify the discipline.
As Plaintiff has inadequately alleged that he was deprived of a liberty interest and that the
defendants actually denied him due process, his claims in Counts 12-14 will be dismissed
without prejudice for failure to state a claim.
Finally as to Count 15, Plaintiff has attempted to name Blythe and Siereveld for writing
the incident reports. Although Plaintiff’s allegation that the reports were false is thin for the
reasons explained above, this claim fails because allegations of false disciplinary reports do not
state a claim where due process is afforded. Hadley v. Peters, 841 F. Supp. 850, 856 (C.D. Ill.
1994) aff'd, 70 F.3d 117 (7th Cir. 1995); Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir. 1984).
The Seventh Circuit Court of Appeals has reasoned that the due process safeguards associated
with prison disciplinary proceedings are sufficient to guard against potential abuses. A hearing
before a presumably impartial Adjustment Committee terminates an officer’s possible liability
for the filing of an allegedly false disciplinary report. Hawkins v. O'Leary, 729 F. Supp. 600,
602 (N.D. Ill. 1990), relying on Hanrahan v. Lane, supra, 747 F.2d at 1141. The procedural
requirements of a disciplinary hearing protect prisoners from arbitrary actions of prison officials.
McKinney v. Meese, 831 F.2d 728, 733 (7th Cir. 1987).
Accordingly, Count 15 will be
dismissed without prejudice for failure to state a claim.
Plaintiff Motion for a Preliminary Injunction will be referred to a United States
Magistrate Judge for disposition. (Doc. 2).
IT IS HEREBY ORDERED that Counts 1-4 survive threshold review against
Defendants True, Blythe, Siereveld, Dunbar, Hill, Burgess, Baskerville, and Krawcyzk. The
Clerk of Court is directed to add Thomas R. Kane in his official capacity to the docket as a
defendant in Count 1, and for the purposes of injunctive relief. The Federal Bureau of Prisons is
DISMISSED with prejudice. Counts 5-15 are DISMISSED without prejudice for failure to
state a claim on which relief can be granted.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants True, Siereveld,
Dunbar, Hill, Burgess, Blythe, Baskerville, Krawcyzk, and Kane: (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.
IT IS FURTHER ORDERED that, 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.
IT IS FURTHER ORDERED that 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
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 a United States
Magistrate Judge for further pre-trial proceedings.
Further, this entire matter is REFERRED to a United States Magistrate Judge for
disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
parties consent to such a referral.
IT IS FURTHER ORDERED that 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 has
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
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: July 18, 2017
s/J. Phil Gilbert
U.S. District Judge
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