Robinson v. Leonard et al

Filing 34

OPINION AND ORDER: Plaintiff Michael T Robinson is GRANTED leave to proceed against Bessie Leonard in her individual capacity and as outlined in Order. Plaintiff is GRANTED leave to proceed against Jeff Myers in his individual capacity and as outline d in order. Plaintiff is GRANTED leave to proceed against Pam James in her individual capacity and as outlined in Order. Plaintiff is GRANTED leave to proceed against Jonathon Sarkorski in his individual capacity and as outlined in Order. Plaintiff i s GRANTED leave to proceed against Trish Roberts in her individual capacity and as outlined in Order. Plaintiff is GRANTED leave to proceed against Howard Morton in his individual capacity and as outlined in Order. All other claims are DISMISSED. Bru ce Lemmon and William Wilson are DISMISSED as parties. Clerk DIRECTED to transmit the Summons and USM-285 forms for Jeff Myers and Jonathon Sarkorski to the United States Marshal's Service along with a copy of the Amended Complaint (DE 28 ), Me morandum (DE 29 ) and this Opinion and Order. United States Marshal's Service DIRECTED to effect service of process on Jeff Myers and Jonathon Sarkorski. Bessie Leonard, Howard Morton, Pam James, Jeff Myers, Trish Roberts and Jonathon Sarkorski ORDERED to respond by 4/28/2016 as outlined in Order. Signed by Judge Robert L Miller, Jr on 2/8/16. (cc: USMS). (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MICHAEL T. ROBINSON,
Plaintiff,
v.
BESSIE LEONARD, et al.,
Defendants.

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CAUSE NO. 3:14-CV-1905 RM

OPINION AND ORDER
Michael T. Robinson, a pro se prisoner, filed an amended complaint. DE 28. “A
document filed pro se is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations
omitted). Nevertheless, the court must review prisoner complaints pursuant to 28 U.S.C.
§ 1915A.
Mr. Robinson lists three claims and eight defendants in his complaint. First he
alleges that Bessie Leonard, Bruce Lemmon, William Wilson, Howard Morton, Pam James,
Jeff Myers, Trish Roberts, and Jonathon Sarkorski denied him access to the courts. Inmates
have a First Amendment right to access the courts. Bounds v. Smith, 430 U.S. 817, 821
(1977). This isn’t an “abstract free-standing right.” Lewis v. Casey, 518 U.S. 343, 351 (1996).
Rather, “only if the defendants’ conduct prejudices a potentially meritorious challenge to
the prisoner’s conviction, sentence, or conditions of confinement has this right been
infringed.” Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006); see also In re Maxy, 674 F.3d

658, 661 (7th Cir. 2012) (“Relief for the denial of access to the courts is intended to remedy
rights denied in a separate case due to the impediment. . . . [T]he right is ancillary to the
underlying claim, without which a plaintiff cannot have suffered injury by being shut out
of court.”) (citation omitted).
Mr. Robinson alleges that the destruction of his computer legal materials created
“undue unnecessary delay [and] frustrated litigation [which] interfered with Plaintiff’s
access [to] the courts burdening his Constitutional rights . . ..” DE 28 at 5. Delay, frustration,
interference, and burdening are insufficient to state a claim. There must have been actual
injury to a potentially meritorious claim. Marshall and Maxy. Though Mr. Robinson says
his post-conviction and civil lawsuits were impacted, he doesn’t explain what meritorious
claims he was presenting or how they were prejudiced other than by being delayed and
made more difficult to effectively litigate. These allegations fall far short, for example, of
those presented in Nitz v. Hall, 473 Fed. Appx. 513 (7th Cir. 2012), which didn’t state a
claim. In Nitz, the plaintiff alleged that prison officials confiscated
at least four DVDs depicting video surveillance related to his criminal cases.
According to the complaint, Nitz informed prison employees that he needed
the DVDs to proceed in the pending litigation, but the employees took the
DVDs as contraband and refused to provide accurate “shakedown slips”
inventorying the number of DVDs taken. As a result of the employees’
actions, Nitz says, his petition for review of his state criminal conviction was
denied; his civil case in Nitz v. Harvey was dismissed; summary judgment
was granted for two defendants in Nitz v. Doe; and his social security
disability appeal was denied. He further alleged that prison employees
intentionally “messed up” legal copies by copying only one side of two-sided
documents and refused to provide him with the original materials; that
prison grievance officers “refused to investigate” grievances he had filed
against prison library staff; and that his former parole officer thwarted his
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success in his criminal and civil cases by neither testifying on his behalf nor
providing exculpatory evidence.
Id. at 514 (citations omitted).
He alleged that the prison prevented him from effectively litigating actions
that were pending, but the right of access protects prisoners from “being shut
out of court,” Christopher v. Harbury, 536 U.S. 403, 415 (2002); it does not
exist to “enable the prisoners . . . to litigate effectively once in court,” Lewis,
518 U.S. at 354 (emphasis in original).
Id. at 515 (emphasis in original, parallel and string citation omitted). Mr. Robinson doesn’t
state a claim for a denial of access to the courts.
Second, Mr. Robinson alleges that Bessie Leonard, William Wilson, Howard Morton,
Pam James, Jeff Myers, and Jonathon Sarkorski subjected him to unreasonable searches and
seizures. He alleges that they searched his computer records and seized his computer files.
Mr. Robinson was (and is) a prison inmate. “[T]he Fourth Amendment proscription against
unreasonable searches does not apply within the confines of the prison cell.” Hudson v.
Palmer, 468 U.S. 517, 526 (1984). “Guards take control of where and how prisoners live;
they do not retain any right of seclusion or secrecy against their captors, who are entitled
to watch and regulate every detail of daily life.” Johnson v. Phelan, 69 F.3d 144, 146 (7th
Cir. 1995). Though Mr. Robinson alleges that these actions violated prison policies, “[i]n
order to state a claim under [42 U.S.C.] § 1983 a plaintiff must allege . . . that defendants
deprived him of a federal constitutional right . . . .” Savory v. Lyons, 469 F.3d 667, 670 (7th
Cir. 2006). The violation of a State prison policy isn’t a basis for a federal constitutional
lawsuit. Mr. Robinson doesn’t state a claim for an unreasonable search or seizure.

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Third, Mr. Robinson alleges that the defendants retaliated against him. To establish
a claim of retaliation in violation of the First Amendment, the plaintiff must allege: (1) he
engaged in activity protected by the First Amendment, (2) he suffered a deprivation that
would likely deter First Amendment activity in the future, and (3) the protected activity
motivated the defendant’s action. Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012). Prison
officials can’t retaliate against an inmate for exercising his First Amendment rights, even
if their actions would not independently violate the Constitution. Zimmerman v. Tribble,
226 F.3d 568, 573 (7th Cir.2000). “The First Amendment prohibits threats of punishment
designed to discourage future protected speech [when] the alleged conduct by the
defendants would likely deter a person of ordinary firmness from continuing to engage in
protected activity.” Surita v. Hyde, 665 F.3d 860, 878 (7th Cir. 2011). However,
[o]nly retaliatory conduct that would deter a similarly situated individual of
ordinary firmness from exercising his or her constitutional rights constitutes
an adverse action for a claim of retaliation. Otherwise, the retaliatory act is
simply de minimis and therefore outside the ambit of constitutional
protection. This objective inquiry is not static across contexts, but rather must
be tailored to the different circumstances in which retaliation claims arise.
Prisoners may be required to tolerate more than public employees, who may
be required to tolerate more than average citizens, before a retaliatory action
taken against them is considered adverse.
Dawes v. Walker, 239 F.3d 489, 493 (2nd Cir. 2001) (citations and quotation marks omitted).
Mr. Robinson alleges that he prepared and filed grievances and lawsuits against
staff. A prisoner has a First Amendment right to use the prison grievance process and a
First Amendment right of access to the courts – he can’t be punished for exercising these

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rights. Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012). Mr. Robinson alleges that the
retaliatory acts taken against him were motivated by his protected activities.
Mr. Robinson sues Bessie Leonard for a series of escalating retaliatory acts beginning
in June 2013 and continuing until April 2014 including destroying his computer legal files
and firing him from his library job. DE 28 at 9-10 and DE 29-1 at 65-68. He sues Jeff Myers
for retaliating against him by destroying his computer legal files and denying him the use
of computers for legal work in July and August 2013. DE 28 at 12-13 and 29-1 at 65. He sues
Pam James for retaliating against him by destroying his computer legal files in August
2013. DE 28 at 12 and DE 29-1 at 65. He sues Jonathon Sarkorski for retaliating against him
by destroying his computer legal files in August 2013. DE 28 at 12-13 and DE 29-1 at 65. He
sues Trish Roberts for retaliating against him by transferring him from a privileged
housing unit “to a much more dangerous part of the prison” in December 2013. DE 28 at
12 and DE 29-1 at 67. He sues Howard Morton for retaliating against him by refusing to
intercede to stop others from retaliating against him. DE 28 at 10-11 and DE 29-1 at 65-91.
Each of these allegations states a claim.
Mr. Robinson also alleges that Indiana State Prison Superintendent William Wilson
and Indiana Department of Correction Commissioner Bruce Lemmon retaliated against
him. Both are alleged to be supervisors whom he contacted about his concerns. There is no
general respondeat superior liability under 42 U.S.C. § 1983. “Only persons who cause or
participate in the violations are responsible.” George v. Smith, 507 F.3d 605, 609 (7th Cir.

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2007). “[P]ublic employees are responsible for their own misdeeds but not for anyone
else’s.” Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009).
Burks’s view that everyone who knows about a prisoner’s problem must pay
damages implies that he could write letters to the Governor of Wisconsin and
999 other public officials, demand that every one of those 1,000 officials drop
everything he or she is doing in order to investigate a single prisoner’s
claims, and then collect damages from all 1,000 recipients if the letter-writing
campaign does not lead to better medical care. That can’t be right.
Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). Mr. Robinson hasn’t stated a claim
against William Wilson or Bruce Lemmon.
Mr. Robinson has stated retaliation claims against six defendants. As relief, he seeks
both monetary damages and injunctive relief. Mr. Robinson asks that the court to order that
he be transferred back to the Indiana State Prison. Without regard to whether any of the
defendants against whom he is proceeding in this case have the authority to order his
transfer,
The PLRA circumscribes the scope of the court’s authority to enter an
injunction in the corrections context. Where prison conditions are found to
violate federal rights, remedial injunctive relief must be narrowly drawn,
extend no further than necessary to correct the violation of the Federal right,
and use the least intrusive means necessary to correct the violation of the
Federal right. This section of the PLRA enforces a point repeatedly made by
the Supreme Court in cases challenging prison conditions: Prison officials
have broad administrative and discretionary authority over the institutions
they manage.
Westefer v. Neal, 682 F.3d 679 (7th Cir. 2012) (quotation marks, brackets, and citations
omitted). Courts must afford prison officials “wide-ranging deference” in the day-to-day
operations of a correctional facility. Bell v. Wolfish, 441 U.S. 520, 547 (1979). Because prison

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officials have authority to house an inmate in any correctional facility they deem
appropriate, an inmate has no constitutional right to be housed in a particular correctional
facility or in the facility of his choosing. See Meachum v. Fano, 427 U.S. 215, 224 (1976);
Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th Cir. 1996).
Mr. Robinson also asks the court to issue a permanent injunction requiring that the
Indiana State Prison, the Indiana Department of Correction, and Indiana Government
agencies be prohibited from retaliating against him, but none of those entities are parties
to this lawsuit and none were even accused of having retaliated against him in the past.
Finally, he asks that Bessie Leonard and Howard Morton be given new job responsibilities.
Even if they are found liable in this case and ordered to pay damages to Mr. Robinson, both
of those defendants are employed by the Indiana Department of Correction and it is up to
it to decide what (if any) job duties they are assigned. Mr. Robinson can only proceed on
claims for monetary damages.
For the foregoing reasons, the court:
(1) GRANTS Michael T. Robinson leave to proceed against Bessie Leonard
in her individual capacity for compensatory and punitive damages for retaliating
against him from June 2013 to April 2014 by a series of escalating acts including
destroying his computer legal files and firing him from his library job because he
prepared and filed grievances and lawsuits;
(2) GRANTS Michael T. Robinson leave to proceed against Jeff Myers in his
individual capacity for compensatory and punitive damages for retaliating against
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him in July and August 2013 by destroying his computer legal files and denying him
the use of computers for legal work because he prepared and filed grievances and
lawsuits;
(3) GRANTS Michael T. Robinson leave to proceed against Pam James in her
individual capacity for compensatory and punitive damages for retaliating against
him in August 2013 by destroying his computer legal files because he prepared and
filed grievances and lawsuits;
(4) GRANTS Michael T. Robinson leave to proceed against Jonathon
Sarkorski in his individual capacity for compensatory and punitive damages for
retaliating against him in August 2013 by destroying his computer legal files
because he prepared and filed grievances and lawsuits;
(5) GRANTS Michael T. Robinson leave to proceed against Trish Roberts in
her individual capacity for compensatory and punitive damages for retaliating
against him in December 2013 by transferring him from a privileged housing unit
to more dangerous part of the prison because he prepared and filed grievances and
lawsuits;
(6) GRANTS Michael T. Robinson leave to proceed against Howard Morton
in his individual capacity for compensatory and punitive damages for retaliating
against him in by refusing to intercede to stop others from retaliating against him
because he prepared and filed grievances and lawsuits;
(7) DISMISSES all other claims;
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(8) DISMISSES Bruce Lemmon and William Wilson as parties;
(9) DIRECTS the clerk to transmit the summons and USM-285 for Jeff Myers
and Jonathon Sarkorski to the United States Marshals Service along with a copy of
the amended complaint (DE 28), memorandum (DE 29), and this order;
(10) DIRECTS the United States Marshals Service, pursuant to 28 U.S.C. §
1915(d), to effect service of process on Jeff Myers and Jonathon Sarkorski; and
(11) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Bessie Leonard,
Howard Morton, Pam James, Jeff Myers, Trish Roberts, and Jonathon Sarkorski
respond by April 28, 2016, as provided for in the Federal Rules of Civil Procedure
and N.D. Ind. L.R. 10-1(b), only to the claims for which the plaintiff has been
granted leave to proceed in this screening order.
SO ORDERED.
ENTERED: February 8 , 2016
/s/ Robert L. Miller, Jr.
Judge,
United States District Court

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