Champ v. Simmon et al

Filing 14

ORDER DISMISSING 11 the First Amended Complaint without prejudice for failure to state a claim upon which relief may be granted. Plaintiff is GRANTED leave to file a "Second Amended Complaint" on or before October 25, 2019. Should Plainti ff fail to file a Second Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, the entire case shall be dismissed with prejudice for failure to comply with a court order and/or for failure to prosecut e his claims. FED. R. CIV. P. 41(b); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2). The dismissal shall also count as one of Plaintiff's three allotted strikes u nder 28 U.S.C. § 1915(g).To enable Plaintiff to comply with this Order, the CLERK is DIRECTED to mail Plaintiff a blank civil rights complaint form. (Amended Pleadings due by 10/25/2019). Signed by Chief Judge Nancy J. Rosenstengel on 10/4/2019. (jrj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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BRYON K. CHAMP,
#B39776,
Plaintiff,
vs.
CHERYL SIMMON, and
CARRIES MORRIS,
Defendants.

Case No. 19-cv-00345-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff Byron Champ, an inmate of the Illinois Department of Corrections who is
currently incarcerated at Western Illinois Correctional Center, commenced this civil rights action
pursuant to 42 U.S.C. § 1983, while he was a pretrial detainee held at the Winnebago County Jail.
He claims deprivations of his constitutional rights arising from events that occurred during his
time at Chester Mental Health Center (“Chester”). He seeks monetary damages.
Plaintiff’s First Amended Complaint is now before the Court for preliminary review
pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to screen prisoner
complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). Any portion of a
complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law is immune from such relief must
be dismissed. 28 U.S.C. § 1915A(b). At this juncture, the factual allegations of the pro se
complaint are to be liberally construed. Rodriquez v. Plymouth Ambulance Serv., 577 F.3d 816,
821 (7th Cir. 2009).

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THE FIRST AMENDED COMPLAINT
Plaintiff alleges the following: Cheryl Simmon is the Coordinator for Unit Three Module
and is responsible for all mail at Chester. (Doc. 11, p. 1, 9, 15). On May 23, 2018, he received a
letter from a district court that Simmon opened with Plaintiff present. A few days later, he received
another letter from the same district court that had been previously opened not in his presence,
resealed with tape and in “disarray.” Id. at p. 7, 9, 10. When Plaintiff asked why the letter was
sealed with tape, Simmon responded that the letter might have been sent like that. Id. at 10. Plaintiff
called the clerk of the district court who told him that the court does not send mail that has been
taped. Id. at pp. 7, 9, 10, 13.
Plaintiff filed grievances regarding the mishandling of his mail with his therapist, Carries
Morris, but he never received a response. (Doc. 11, p. 2). He believes that Morris did not file his
grievances and hindered his ability to seek redress because he never heard back or was scheduled
an appointment or hearing. Id. at pp. 2, 6, 14.
DISCUSSION
Based on the allegations in the First Amended Complaint, the Court finds it convenient to
divide the claims in this case into the following six Counts:
Count 1:

First Amendment and Fourteenth Amendment claim against
Simmon for opening Plaintiff’s legal mail without him being
present.

Count 2:

Fourth Amendment right to privacy claim against Simmon for
opening Plaintiff’s legal mail without him being present.

Count 3:

Fourteenth Amendment due process claim against Simmon for
opening Plaintiff’s legal mail without him being present.

Count 4:

Illinois state law claim under 405 ILCS 5/2-103 and the Chester
Mental Health Center Patient Handbook against Simmon for
opening Plaintiff’s mail without him being present.

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Count 5:

Fourteenth Amendment due process claim against Morris for
mishandling and failing to process Plaintiff’s grievances regarding
his legal mail.

Count 6:

First Amendment access to the courts claim against Morris and
Simmons for the mishandling of Plaintiff’s legal documents and
property box.

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. Any claim that is mentioned in the First
Amended Complaint but not addressed in this Order is considered dismissed without
prejudice as inadequately pled under the Twombly 1 pleading standard.
PRELIMINARY DISMISSAL
Plaintiff makes several claims that are not associated with a specific defendant or supported
by factual details. “A complaint which consists of conclusory allegations unsupported by factual
assertions fails even the liberal standard of Rule 12(b)(6),” Palda v. General Dynamic Corp.,
47 F.3d 872, 875 (7th Cir. 1995); Jackson v. E.J. Brach Corp., 176 F.3d 971 (7th Cir. 1999). As
such, his claims regarding violations of his equal protection rights (Doc. 11, p. 6), and rights under
the Eleventh and Fifth Amendments, (Id. at p. 11), are dismissed.
In the middle of the First Amended Complaint, Plaintiff also gives an account of dates and
times in March 2019, regarding the mishandling of legal mail. Not only are these claims not
associated with any individual or named defendant, but these events seem to have occurred while
Plaintiff was not at Chester, and so these claims are also dismissed. 2 See Twombly, 550 U.S. at
555; FED. R. CIV. P. 8(a)(2).

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Bell Atlantic Corp. v Twombly, 550 U.S. 544, 570 (2007).
See Bova v. U.S. Bank, N.A., 446 F.Supp.2d 926, 930 n.2 (S.D. Ill. 2006) (a court may judicially notice public records
available on government websites) (collecting cases). At the time Plaintiff filed his original Complaint in this action
on March 25, 2019, and a complaint in another federal lawsuit on March 5, 2019, his address is listed as Winnebago
County Jail. See Champ v. Forcum, No. 19-cv-00263-SMY (S.D. Ill. Mar. 5, 2019) (Doc. 2).

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Count 1
Inmates have a First Amendment right both to send and receive mail, Rowe v. Shake, 196
F.3d 778, 782 (7th Cir.1999), but that right does not preclude prison officials from examining mail
to ensure that it does not contain contraband. Wolff v. McDonnell, 418 U.S. 539, 576 (1974). An
inmate’s legal mail, that is “mail designated as correspondence with an attorney,” Harrison v. Cty.
of Cook. Ill., 364 F. App’x 250, 252 (7th Cir. 2010), is entitled to greater protections because of
the potential for interference with his right of access to the courts. 3 Rowe, 196 F.3d at 782. Thus,
when a prison receives a letter for an inmate that is marked with an attorney’s name and a warning
that the letter is legal mail, officials potentially violate the inmate’s rights if they open the letter
outside of the inmate’s presence. See Wolff, 418 U.S. at 577; Castillo v. Cook Cty. Mail Room
Dep’t, 990 F.2d 304, 305–06 (7th Cir.1993).
Plaintiff claims that his constitutional rights were violated because his “legal mail,” a letter
from a district court, was opened outside of his presence. He claims that the letter was confidential
and clearly marked that it was from the district court. (Doc. 11, pp. 6, 7). Although Plaintiff refers
to the letter as legal mail and confidential, such correspondence is considered a public document,
and, unlike correspondence with an attorney, it does not constitute legal mail or implicate an
inmate’s right to confidential lawyer-client communication. Antonelli v. Sheahan, 81 F.3d 1422,
1431 (7th Cir. 1996) (“prison officials can open official mail sent by a court clerk to an inmate
without infringing on any privacy right”); Martin v. Brewer, 830 F.2d 76, 78 (7th Cir. 1987) (“with

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Although Plaintiff repeatedly characterizes his claim as a violation of his right to free speech, the Seventh Circuit has
clarified that, because a confidential communication with a lawyer is aimed to win a case rather than to enrich the
marketplace of ideas, it is “more straightforward” to view an interference with legal mail claim as infringing on the
right of access to the courts as opposed to the right of free speech. Guajardo-Palma v. Martinson, 622 F.3d 801, 801,
803 (7th Cir. 2010) (prison official reading mail to or from prisoners who sue them “is like a litigant’s eavesdropping
on conferences between his opponent and the opponent’s lawyer.”); see also Delgado v. Godinez, 683 F. App’x 528,
529 (7th Cir. 2017).

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minute and irrelevant exceptions all correspondence from a court to a litigant is a public document,
which prison personnel could if they want inspect in the court’s files”).
Plaintiff also has not shown that the opening of the letter from the district court prejudiced
or hindered his ability to pursue a legal claim or defense, and so he has not demonstrated a denial
of access to the courts. Guajardo-Palma, 622 F.3d at 805-06.
Plaintiff alleges that the “sheer number of legal letter[s] to him that were opened out of his
presence” is evidence of a practice of opening legal mail. (Doc. 11, p. 8). A general policy or
practice of opening and reading mail may be sufficient to show hindrance. Guajardo-Palma, 622
F.3d at 805-06. He does not, however, include any allegations regarding these occurrences at
Chester, and to the contrary, he provides several instances where his legal mail was opened with
him present. Id. at p. 9. Not only are “naked assertions devoid of further factual enhancement” are
insufficient to state a claim, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
and citations omitted), but isolated incidents of interference with legal mail are generally also
insufficient to maintain a claim. See Bruscino v. Carlson, 654 F.Supp. 609, 618 (S.D. Ill. 1987),
aff'd, 854 F.2d 162 (7th Cir. 1988).
For these reasons, Plaintiff has failed to show how the opening of the letter from the district
court violated his First Amendment rights, and Count 1 is dismissed.
Count 2
Plaintiff claims that his right to privacy under the Fourth Amendment has been violated
because his private legal mail was opened not in his presence. (Doc. 11, pp. 6, 11). A prisoner has
no reasonable expectation of privacy under the Fourth Amendment while incarcerated. See Hudson
v. Palmer, 468 U.S. 517, 527-28 (1984); Smith v. Clendenin, No 16-cv-664-MJR, 2016 WL

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5243032, at * 7 (S.D. Ill. Sept. 22, 2016). A prisoner’s right to send and receive mail is protected
under the First Amendment, as previously discussed, and so Count 2 shall be dismissed.
Count 3
Plaintiff asserts that the opening of his legal mail also violated his Fourteenth Amendment
rights. As stated in the initial merit review order (Doc. 9, p. 5), to the extent that he is arguing that
his right of access to the courts was denied without due process, his claim fails because he has not
alleged any hindrance to a legal claim. To the extent he was denied his legal mail without due
process, this claim also fails because the Seventh Circuit has found that Illinois provides an
adequate property post-deprivation remedy in an action for damages in the Illinois Court of Claims.
Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999). Count 3 will be dismissed.
Count 4
Plaintiff brings claims against Simmon for opening his mail in violation of Illinois statutory
law and Chester handbook regulations. Illinois courts have recognized that prison regulations were
“never intended to confer rights on inmates or serve as a basis for constitutional claims[,]” Ashley
v. Snyder, 316 Ill. App. 3d 1252, 1258 (Ill. App. Ct. 2000), and a statutory or administrative code
violation does not translate into a constitutional violation upon which a civil rights claim may rest.
Additionally, a federal court does not enforce state law and regulations. See Pasiewicz v. Lake Cty.
Forest Preserve Dist. 270 F.3d 520, 526 (7th Cir. 2001); Gujardo-Palma, 622 F.3d at 806.
Therefore, Count 4 is dismissed.
Count 5
Plaintiff claims that Morris hindered his ability to seek redress for the issues regarding his
legal mail because he was never provided a hearing and his grievances were ignored. (Doc. 11,
p. 6). Inmates do not, however, have a constitutional right to an effective grievance procedure.

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Antonelli, 81 F.3d at 1430. As such, the fact that prison officials denied, mishandled, or refused to
consider grievances or claims raised by grievances “by persons who otherwise did not cause or
participate in the underlying conduct states no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th
Cir. 2011). Additionally, the failure of prison officials to follow their own procedures also does
not, standing alone, violate the Constitution. Maust v. Headley, 959 F.2d 644, 648 (7th Cir. 1992).
Count 5 is dismissed.
Count 6
Prisoners have a fundamental right of meaningful access to the courts. Bounds v. Smith,
430 U.S. 817 (1977). In order to state a claim for denial of access to the courts, a prisoner must
first show that a prison official deprived him of legal materials or assistance. See Jenkins v. Lane,
977 F.2d 266, 268 (7th Cir. 1992). Secondly, he must be able to show “some quantum of detriment
caused by the challenged conduct of state officials resulting in the interruption and/or delay of
plaintiff’s pending or contemplated litigation.” Alston v. DeBruyn, 13 F.3d 1036, 1041 (7th Cir.
1994); see also Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir. 2004). The plaintiff must explain “the
connection between the alleged denial of access to legal materials and an inability to pursue a
legitimate challenge to a conviction, sentence, or prison conditions,” Ortiz v. Downey, 561 F.3d
664, 671 (7th Cir. 2009) (internal quotation and citation omitted); accord Guajardo-Palma, 622
F.3d at 805-06.
Plaintiff’s claims regarding access to courts because of acts by Simmons and Morris are
unclear and confusing. At one point he states he had a court date for May 2, 2018, and he was
“hinder[ed] from this court date” and could not appear. (Doc. 11, pp. 14, 16). He also states that
Morris did not arrange the “court date to go through” and that she lied about making the
appointment. Id. at pp. 13, 14. He alleges that he requested that Morris add a copy of a letter to his

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other legal documents in his property box and that he was prohibited from “retaining this letter.”
He received a copy of the letter from an attorney named, Stacy Aschermann, but then states he
could not get the letter from the property box to send to the judge in his case. Id. at pp. 2, 14.
Plaintiff has failed to plainly state how Defendants’ actions caused him to miss his court
date, and it is unclear if he even had a court date. Given the confusion, Count 5 is dismissed, but
the Court will allow Plaintiff a final opportunity to clarify his claim. In the amended complaint,
Plaintiff should state what each Defendant did or failed to do that hindered his ability to pursue a
legal claim.
DISPOSITION
IT IS ORDERED that the First Amended Complaint (including COUNTS 1, 2, 3, 4, 5,
and 6) shall be DISMISSED without prejudice for failure to state a claim upon which relief may
be granted.
Plaintiff is GRANTED leave to file a “Second Amended Complaint” on or before October
25, 2019. Should Plaintiff fail to file a Second Amended Complaint within the allotted time or
consistent with the instructions set forth in this Order, the entire case shall be dismissed with
prejudice for failure to comply with a court order and/or for failure to prosecute his claims. FED.
R. CIV. P. 41(b); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34
F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2). The dismissal shall also count as one of
Plaintiff’s three allotted “strikes” under 28 U.S.C. § 1915(g).
It is strongly recommended that Plaintiff use the civil rights complaint form designed for
use in this District. He should label the form, “Second Amended Complaint,” and he should use
the case number for this action (No. 19-cv-00345-NJR). To enable Plaintiff to comply with this
Order, the CLERK is DIRECTED to mail Plaintiff a blank civil rights complaint form.

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An amended complaint generally supersedes and replaces previous complaints, rendering
the previous complaints void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638
n. 1 (7th Cir. 2004). The Second Amended Complaint must stand on its own without reference to
any previous pleading. Plaintiff must re-file any exhibits he wishes the Court to consider. The
Second Amended Complaint is also subject to review pursuant to 28 U.S.C. § 1915A.
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee remains due and payable, regardless of
whether Plaintiff files a Second Amended Complaint. 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch,
133 F.3d 464, 467 (7th Cir. 1998).
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: October 4, 2019
___________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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