Goree v. Serio et al
Filing
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ORDER DISMISSING CASE with prejudice. Signed by Judge J. Phil Gilbert on 9/25/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CLARENCE G. GOREE,
Plaintiff,
vs.
J. SERIO,
JEANNETTE SPENCE,
RICHARD W. SCHOTT,
JAMES CROSS, JR., and
MARK THOMAS,
Defendants.
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Case No. 17−cv–0685−JPG
MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Clarence Goree, an inmate in Federal Correctional Institute Gilmer, brings this
action for deprivations of his constitutional rights pursuant to the Federal Tort Claims Act, 28
U.S.C. §§ 1346, 2671-2680 (“FTCA”) and Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971) for events that happened at Greenville Correctional
Center. Plaintiff requests expungement of a disciplinary report dated May 9, 2013, immediate
release from prison,1 and $250,000 in damages. 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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This request for relief is only cognizable in a habeas proceeding; it is not relief available pursuant to
Bivens or the FTCA.
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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
Plaintiff alleges that his trust fund account at FCI Greenville was encumbered for several
months in 2013 by Warden James Cross, J. Serio, and Mark Thomas. (Doc. 1, p. 5). Cross
encumbered the funds on his authority alone, and not because of any court order. Id. Plaintiff
alleges that Cross never provided a documented reason for encumbering the funds. Id. An
exhibit attached the Complaint shows that an unknown individual requested the encumbrance
due to an ongoing investigation by the FBI into possible criminal activity. (Doc. 1, p. 15). The
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SIS Office at Greenville requested Plaintiff’s account be un-frozen on December 30, 2013.
(Doc. 1, p. 16).
Exhibits attached to the Complaint show that Plaintiff inquired about the encumbrance on
July 29, 2013. (Doc. 1, p. 7). Cross’s response notes that $25,000 of Plaintiff’s inmate account
was encumbered due to an ongoing investigation pursuant to FBOP Program Statement 4500.08
on June 17, 2013. (Doc. 1, p. 8). Plaintiff also retained counsel, who wrote to Warden Cross and
Ms. Spence on July 18, 2013 and demanded that Plaintiff’s funds be made available to him
immediately. (Doc. 1, p. 12).
Richard Schott, the Federal Bureau of Prisons Regional Counsel, mishandled Plaintiff’s
tort claim, preventing Plaintiff from “proper recourse.” (Doc. 1, p. 5).
Plaintiff submitted a
claim to the Federal Bureau of Prisons seeking $4,391.83. (Doc. 1, p. 10). Schott sent Plaintiff
correspondence on June 10, 2014 acknowledging receipt of the claim. Id. Although the original
correspondence referenced the Federal Tort Claims Act, 28 U.S.C. § 1346 (b), 2671 et. seq.,
Schott’s subsequent correspondence denied Plaintiff’s claim under 31 U.S.C. § 3723 and
informed Plaintiff that he could not seek judicial review of his claim on October 17, 2014. (Doc.
1, p. 25). Plaintiff requested reconsideration on October 24, 2014 on the grounds that 1) he
brought his claim under the FTCA, not § 3723; 2) that Cross was “wrong and negligent.” (Doc.
1, p. 9).
Plaintiff also submitted documentation on other administrative remedies he pursued. It
appears that he submitted remedy No. 743411-R1 regarding the encumbrance of his account in
the fall of 2013. (Doc. 1, pp. 17-19). Plaintiff received a final response to his grievance on May
20, 2015 on the grounds that the funds were no longer encumbered. (Doc. 1, p. 19). Plaintiff
also submitted a BP-9 form on the disciplinary report he received on May 20, 2013, Case No.
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739334-R1. (Doc. 1, pp. 21-22). His appeal of his disciplinary report was partially granted on
May 8, 2015. (Doc. 1, p. 24).
The disciplinary report that Plaintiff requests expunged is dated May 10, 2013. (Doc. 1,
p. 20). Plaintiff was charged with insolence for refusing to answer J. Serio’s questions about
“the issue.” Id. Plaintiff lost 90 days of email, phone, visiting, and commissary. Id.
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into 4 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. None of
Plaintiff’s claims survive threshold review:
Count 1 – Cross, Serio, Thomas and Spence encumbered Plaintiff’s trust fund
account in the amount of $25,000 in violation of his due process and equal
protection rights under the Fifth Amendment;
Count 2 – Schott failed to properly respond to Plaintiff’s administrative requests
for a remedy in violation of the due process clause of the Fifth Amendment;
Count 3 – Serio violated Plaintiff’s due process rights under the Fifth
Amendment when he wrote him a false disciplinary report alleging Plaintiff was
insolent;
Count 4 – Plaintiff’s trust fund account was improperly frozen in violation of the
FTCA.
As to Plaintiff’s Count 1, although inmates have a property interest in their personal
funds on deposit in prison accounts, Plaintiff was not ultimately deprived of any property. The
inquiry is whether the temporary deprivation of funds is protected under the due process clause.
The Constitution does not provide a basis for finding a liberty interest in Plaintiff’s trust fund
account. Campbell v. Miller, 787 F.2d 217, 222 (7th Cir. 1986); Watson-El v. Wilson, No. 08 C
7036, 2010 WL 3732127 at *6 (N.D. Ill. Sept. 15, 2010). Without an interest grounded in the
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Constitution, Plaintiff must point to an interest created by federal or state law. Id. For federal
inmates, the proper inquiry is to look to the relevant prison regulations involving inmate
commissary accounts. Id. Although Plaintiff repeatedly argues that the Warden encumbered his
account without any authority, his exhibits clearly state that the Warden encumbered his funds
pursuant to BOP Program statement 4500.08:
Encumbrance of inmate funds for various reasons is essential. Careful
consideration is given before to any action; encumbrances are not made
indiscriminately. An encumbrance may be made for various reasons. . . .
Encumbrances are at the Warden's discretion or the result of a disciplinary
hearing sanction. . . . Funds the Warden encumbers may only be released upon
his/her approval or upon inmate release. (Doc. 1, p. 15).
The regulations do not entitle Plaintiff to any process regarding encumbrances of his trust fund
account because it leaves encumbrances solely to the Warden’s unlimited discretion.
Id.
(“Unless the regulation limits an official’s discretion in denying the benefit to “objective and
defined” criteria, no protected interest has been created.”) quoting Olin v. Wakinekona, 461 U.S.
238, 249 (1983). Plaintiff has no claim for violation of his due process rights.
Plaintiff has also alleged that he was discriminated against. Plaintiff has not made a valid
claim for discrimination because he has not alleged that he is a member of a protected class or
that similarly situated people outside of the protected class were treated differently.
Pacheco v.
Lappin, 167 F. App'x 562, 564 (7th Cir. 2006); Brown v. Budz, 398 F.3d 904, 916 (7th Cir.
2005). Thus he has failed to state an equal protection claim.
Even if Plaintiff had stated a valid constitutional claim in Count 1, the claim would still
be barred by the statute of limitations. Although typically the statute of limitations is an
affirmative defense raised by the defendants, the Court may invoke an affirmative defense on
behalf of an un-served defendant if it is clear from the face of the complaint that the defense
applies. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002); Gleash v. Yuswak, 308 F.3d
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758, 760 (7th Cir. 2002). The defense must be both apparent and unmistakable. Walker, 288
F.3d at 1010.
Bivens actions are considered to be personal injury claims and are governed by the statute
of limitations of the state in which the injury occurred, in this case, Illinois. Delgado-Brunet v.
Clark, 93 F.3d 339, 342 (7th Cir. 1996). In Illinois, personal injury claims are governed by a
two-year statute of limitations. Id.; 735 ILCS 5/13-202 (personal injury actions “shall be
commenced within 2 years next after the cause of action accrued”). Therefore, a two-year statute
of limitations applies to Plaintiff’s Bivens claims.
Plaintiff is entitled to some tolling on his claim, because he could not have brought suit
until he exhausted the administrative remedy process. 42 U.S.C. § 1997e(a); see also Porter v.
Nussle, 534 U.S. 516, 524 (2002) (noting that federal prisoners suing under Bivens, like state
prisoners suing under § 1983, must exhaust inmate grievance procedures before they can file
their suit).
Documents attached to the Complaint show that Plaintiff completed the administrative
grievance process for his Bivens claim on May 20, 2015—nearly 2 years after the events at issue
here began. Assuming that Plaintiff was entitled to toll the statute of limitations for that entire
time period,2 he still would have had to file suit within 2 years of the final denial of his grievance
or no later than May 20, 2017. Plaintiff’s Certificate of Service indicates that he put his
Complaint in the mail for filing on June 20, 2017, a month after the statute of limitations expired.
Therefore, Count 1 is also untimely and will be dismissed with prejudice.
Count 2 will also be dismissed with prejudice as legally frivolous because Plaintiff has
no legal interest in the proper functioning of the administrative remedy process. Antonelli v.
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Typically the time between the incident and the start of the grievance process is not tolled, but the BP-8 as
to this claim is not part of the record.
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Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Furrow v. Lappin, 2:09-cv-387-WTL-DML, 2009
WL 9052194 *1 (S.D. Ind. Dec. 28, 2009) (“[T]here is no viable claim which can be vindicated
through a Bivens action based on the alleged mishandling of grievances.”). Plaintiff has alleged
that Schott misunderstood which statute he was attempting to invoke in his Form 95 and
improperly denied the administrative remedy, but such conduct, even if wrongful, states no
claim. Plaintiff has not alleged that Schott was personally involved in the decision to encumber
his funds initially, and Plaintiff did not submit his claim to Schott until May 2014, well after the
funds had been restored, so Schott could not be liable on a failure to intervene theory. More to
the point, as the Court has found that encumbrances do not deprive Plaintiff of any
constitutionally protected interest, Plaintiff has no underlying constitutional claim in which
Schott could have been involved. Count 2 will be dismissed with prejudice.
As to Count 3, Plaintiff has alleged that Serio wrote him a false disciplinary report
alleging that Plaintiff was insolent, when all Plaintiff did was refuse to answer his questions.
Allegations of false disciplinary reports do not state a claim where due process is afforded.
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 hearing
officer 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).
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Plaintiff also has no due process claim in the results of his disciplinary hearing because
he has not alleged that he was deprived of a liberty interest. When a plaintiff brings an action
under § 1983 for procedural due process violations, he must show that the state deprived him of a
constitutionally protected interest in “life, liberty, or property” without due process of law.
Zinermon v. Burch, 494 U.S. 113, 125 (1990). The Seventh Circuit has limited the ability of
prisoners to assert that terms in segregation implicate a liberty interest. Marion v. Columbia
Corr. Inst., 559 F.3d 693, 697 (7th Cir. 2009).
Whether a prisoner has a liberty interest
implicated by special confinement relies on whether the confinement imposed an “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 484 (1995).
Plaintiff has not alleged that his sentence was lengthened as a result of the hearing, nor
has he alleged that he was subjected to atypical and significant hardship as a result of the
hearing. In fact, the exhibits attached the Complaint show that Plaintiff only lost 90 days of
privileges, which is not a deprivation that the Constitution recognizes.
Plaintiff has not
articulated a viable due process claim in Count 3. Because a false disciplinary report does not
violate the due process clause and his exhibits show that he did not lose anything that would be
recognized as a liberty interest, Count 3 will be dismissed with prejudice as legally frivolous.
Turning to Count 4, this claim fails for 3 reasons. First of all, although Plaintiff has
indicated in the Complaint and in a subsequent Motion that he wishes to bring claims under the
FTCA, Plaintiff did not actually name the United States as a defendant here, which is fatal to his
claim. Hughes v. United States, 701 F.2d 56, 58 (7th Cir.1982) (per curiam); accord, e.g., 28
U.S.C. § 2679(a), (b)(1).
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The claim also falls within the discretionary function exception for tort liability under the
FTCA. 28 U.S.C. § 2680(a); Berkovitz v. United States, 486 U.S. 531, 535 (1988). The
exception covers conduct that is made in an official’s discretion for reasons of public policy.
United States v. Gaubert, 499 U.S. 315, 322 (1991). Plaintiff’s claim falls within the exception.
There is a relevant regulation that explicitly grants the warden discretion to encumber inmate
accounts. Here, the account was encumbered as part of an external investigation into possible
criminal activity. Deterring criminal activity is in the public interest, therefore the funds were
encumbered in the service of public policy. Claim 4 fails because it falls within an exception to
the FTCA’s waiver of federal sovereign immunity.
Even if the claim was not bared by § 2680(a), it would still fail because it is also barred
by the statute of limitations.3 “A tort claim against the United States shall be forever barred
unless it is presented in writing to the appropriate Federal agency within two years after such
claim accrues or unless action is begun within six months after the date of mailing . . . of notice
of final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401.
Plaintiff received notice that his claim had been denied by the Bureau of Prisons on October 17,
2014. (Doc. 1, p. 11). He should have filed suit no later than April 17, 2015. Yet Plaintiff
waited until June 20, 2017—more than 2 years past the statute of limitations. His claim is
therefore untimely. For all of the above reasons, Count 4 shall be dismissed with prejudice.
Finally, Plaintiff requested $4,391.83 from the Bureau of Prisons in compensation. (Doc.
1, p. 10). Presumably, that was the amount of attorney fees he incurred in removing the
encumbrance. Plaintiff now requests $250,000. Plaintiff is barred from recovering more than
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This is also why any amendment to substitute or add the United States as a defendant would be futile.
Stewart v. United States, 655 F.2d 741, 742 (7th Cir. 1981) (rejecting argument that amendment adding the United
States related back to the original complaint for statute of limitations purposes).
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the amount that he requested from the Bureau of Prisons on his FTCA claim. 28 U.S.C. § 2675.
So even if this claim survived, he would not be able to recover the $250,000 that he seeks.
Pending Motions
Plaintiff filed a Motion to Amend/Supplement the Complaint on July 11, 2017. (Doc. 5).
That Motion indicates that Plaintiff was attempting to bring suit pursuant to both § 1331
(Bivens), and §§ 1346; 2671 et seq., (FTCA). The original Complaint only checked the box
noting an FTCA claim. (Doc. 1, p. 1). The Court does not accept piecemeal amendments to
Complaints.
However, noting that Plaintiff proceeds pro-se and had named individual
defendants, the Court construed the original Complaint as bringing claims both pursuant to
Bivens and the FTCA, and reviewed it accordingly. Therefore, Plaintiff’s Motion is MOOT.
(Doc. 5).
Disposition
IT IS HEREBY ORDERED that Count 1 will be DISMISSED with prejudice for
failure to state a claim and for being untimely. Counts 2 and 3 will be DISMISSED with
prejudice as legally frivolous. Count 4 will be DISMISSED with prejudice for failure to
name the proper defendant, on sovereign immunity grounds, and for being untimely. Plaintiff’s
Motion to Amend/Supplement is MOOT. (Doc. 5). As Plaintiff’s claims cannot be saved
through amendment, this case is DISMISSED with prejudice and judgment will enter.
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);
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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.
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.
IT IS SO ORDERED.
DATED: September 25, 2017
s/J. Phil Gilbert
U.S. District Judge
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