McCullough v. Holy Cross College et al

Filing 13

OPINION AND ORDER: The Court GRANTS Anthony Kevin McCullough leave to proceed against Kenneth Watts and Alicia Serocynski, Ph.D, in their individual capacity for monetary damages for depriving him of his liberty without due process of law; GRANTS le ave to proceed against Kenneth Watts and Alicia Serocynski, Ph.D, in their official capacity for injunctive relief to permit Mr. McCullough to obtain an associate's degree and be readmitted to the program; DISMISSES all other claims; DISMISS ES Holy Cross College, Jamie Bush, David T. Tyson, Justin Watson, Ph.D., University of Notre Dame, Hiroko Harrison, Mark Sevier, and John Hicks; DIRECTS the clerk and the United States Marshals Service to issue and serve process on Kenneth Watts and Alicia Serocynski, Ph.D., at the Indiana Department of Correction with a copy of this order and the complaint as required by 28 U.S.C. §1915(d); and ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Kenneth Watts and Alicia Serocynski, Ph. D. respond, 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. Signed by Judge Robert L Miller, Jr on 2/4/2019. (Copy mailed as directed in Order) (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ANTHONY KEVIN McCULLOUGH,
Plaintiff,
v.

HOLY CROSS COLLEGE, et al.,
Defendants.

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CAUSE NO. 3:18-CV-017-RLM-SLC

OPINION AND ORDER
Anthony Kevin McCullough, a prisoner without a lawyer, filed an
amended complaint (ECF 7) that is nearly identical to his earlier complaint but
names ten defendants instead of seven. “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. McCullough is the only source of information at this point, and here
is what he says happened. Mr. McCullough was taking college classes through
the Holy Cross, University of Notre Dame, Westville Education Initiative, while
he was housed at the Westville Correctional Center.1 He was on course to
graduate with an associate’s degree in liberal studies on December 16, 2017.

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Mr. McCullough is now housed at the Plainfield Correctional Facility. (ECF 9.)

This would have enabled him to be released from prison one year earlier. He
planned to then work toward a bachelor’s degree, which would have resulted in
a further reduction in his sentence. But Mr. McCullough experienced a status
change at the prison, was banned from using the Jpay system to send and
receive messages, and wasn’t awarded a degree. He has sued Holy Cross
College, Jamie Bush (a Holy Cross College Volunteer), Alicia Serocynski, Ph.D.
(Director of the Westville Education Initiative), David T. Tyson (President of
Holy Cross College), Justin Watson, Ph.D. (Provost of Holy Cross College), the
University of Notre Dame, Hiroko Harrison (Registrar of Holy Cross College),
Kenneth Watts (GSC Complex Director at Westville Correctional Facility),
Warden Mark Sevier, and John Hicks (an administrative assistant at Westville
Correctional Facility). He asks that his Jpay privileges be restored, that an
associate’s degree be awarded, that he be readmitted to the program so he can
pursue his bachelor’s degree, and that he be awarded monetary damages.
Mr. McCullough’s problems began on November 14, 2017, when it was
discovered that one of the Holy Cross College volunteers, Jamie Bush, was
having a sexual relationship with one of Mr. McCullough’s classmates. Ms.
Bush was removed from the facility. A few days later, Mr. McCullough received
an odd and unsolicited email by way of the prison’s Jpay system. The email
was from someone he didn’t know, and it read as follows:
Please tell the ARAB, the one from Saudi Arabia /
Seattle that I love him. Tell him I will do and say
whatever it takes to get him out of this. I will say it is
all my fault. I talked to the Dr. and we had a good cry.

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(ECF 7 at 12.) Mr. McCullough responded as follows:
You must have me confused with someone else. I don’t
know you or who you are talking about. It appears you
have some problems in your life that don’t concern me
nor do I want them to. Good luck. Be well.
(Id.) Mr. McCullough unsuccessfully tried to remove this person from his Jpay
list. A reply came a few days later, revealing to Mr. McCullough for the first
time that Ms. Bush was the author.
Ok, ok, ok, sure. Please tell the ARAB, you know who I
love him. Enjoy your Pilatus Mi Amigo JB.
(Id.) Ms. Bush deleted her Jpay contact after sending her reply, so no further
communication took place between Mr. McCullough and Ms. Bush.
On November 30, 2017, while in the middle of giving a final oral
presentation, Mr. Watts removed Mr. McCullough from class and told him that
he was being relocated to a different dorm. That same day his ability to use the
Jpay kiosk was permanently suspended for unauthorized contact with a
volunteer. (ECF 7-1 at 11.)
Also on November 30, Mr. McCullough wrote to Dr. Serocynski advising
her of his status change and expressing a desire to ensure that all of his
remaining work was turned in so he could complete his associate’s degree as
scheduled and receive his one year time cut. Mr. McCullough knew from Dr.
Serocynski’s earlier actions and words that she didn’t like him, so one solution
he proposed was that he simply be given F’s on his remaining exams, knowing
his grades were high enough that he would still graduate. He wrote his
professors, too, asking that he be allowed to take his final exams and turn in

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his final papers. Dr. Serocynski told the professors not to accept any work
turned in by Mr. McCullough. Rather than being permitted to finish his course
work, Mr. McCullough was given incompletes.
Mr. McCullough met with Mr. Watts on December 27, 2017, and
discussed the Jpay exchange between him and Ms. Bush and its impact on his
participation in the Westville Education Initiative. Mr. McCullough explained
what happened, but Mr. Watts indicated that moving him back to the dorm
wouldn’t help him because “Alicia Serocynski is not accepting [you] back into
the college program.” (ECF 7 at 15.) It was further explained that the reason
was “because Alicia Serocynski does not like you, and she is choosing to give
you incompletes instead of your time cut because she can.” (Id.) When Mr.
McCullough noted that the IDOC policy would allow him to return to the
program in six months, Mr. Watts stated, “I have nothing to do with that.
Serocynski said she is not letting you return to the program, she doesn’t like
you, she asked me not to move you back to 6-dorm, so I’m not because she
asked me not to and I don’t want to.” (Id. at 16.)
Mr. Deleon also received unsolicited emails from Jamie Bush using a
false name, and he, too, was removed from the program. But Mr. Deleon was
allowed to return to the program six months later. Mr. Deleon asked Dr.
Serocynski about Mr. McCullough, and she responded by stating that “I have
made sure with Mr. Watts that Anthony will never return to the program.” (Id.
at 17.)

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“In order to state a claim under [42 U.S.C.] § 1983 a plaintiff must allege:
(1) that defendants deprived him of a federal constitutional right; and (2) that
the defendants acted under color of state law.” Savory v. Lyons, 469 F.3d 667,
670 (7th Cir. 2006). For a private party to be held liable under 42 U.S.C. §
1983, “the state must somehow be responsible for the allegedly unlawful
actions taken by the party.” Wade v. Byles, 83 F.3d 902, 905 (7th Cir. 1996).
Seven of the ten defendants that Mr. McCullough has sued are private
individuals that he also named in his original complaint. As explained
previously, while the conduct of private actors can transform them into state
actors for § 1983 purposes, the facts must permit an inference that defendant’s
actions are “fairly attributable to the state.” L.P. v. Marian Catholic High Sch.,
852 F.3d 690, 696 (7th Cir. 2017) (quoting Lugar v. Edmondson Oil Co., 457
U.S. 922, 937 (1982)). The court of appeals provided a summary of situations
where private actors can become state actors.
Private action can become state action when private
actors conspire or are jointly engaged with state actors
to deprive a person of constitutional rights; where the
state compels the discriminatory action; when the
state controls a nominally private entity; when it is
entwined with its management or control; when the
state delegates a public function to a private entity; or
when there is such a close nexus between the state
and the challenged action that seemingly private
behavior reasonably may be treated as that of the state
itself.
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 815
(7th Cir. 2009).

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Inquiry is on a case by case basis. As with his earlier complaint, Mr.
McCullough hasn’t alleged facts from which it can be plausibly inferred that
Holy Cross College, Jamie Bush, David Tyson, Justin Watson, University of
Notre Dame, or Haroko Harrison could be fairly deemed state actors. Mr.
McCullough alleges that David Tyson, Justin Watson, and Haroko Harrison
either refused to give him his degree or refused to direct others to give him his
degree. Mr. McCullough alleges only that Jamie Bush engaged in an
inappropriate relationship with another prisoner, was escorted from the facility
when

the

relationship

was

discovered,

and

thereafter

inappropriately

communicated with Mr. McCullough using a false name.
None of these individuals are alleged to have conspired with any state
employee,

and

the

amended

complaint

doesn’t

describe

a

symbiotic

relationship or other close nexus between them and any state employee or
entity. Thus, none of these individual’s actions can be fairly attributed to the
state.
Neither are there facts that support a finding that either Holy Cross
College or Notre Dame could be fairly deemed state actors. The 2016 Student
Handbook describes the Westville Education Initiative as “a collaboration
between Holy Cross College and the University of Notre Dame and is jointly
conceived, guided, and overseen by faculty and administration from both
institutions.” (ECF 7-1 at 2.) As explained previously, while Westville permits
the program to operate within the facility and rewards inmates who obtain
degrees through the program and meet other requirements, that isn’t enough

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to transform private action into action fairly attributable to the state. And Mr.
McCullough hasn’t alleged that the state delegated a function for which it could
not disclaim responsibility to the defendants: providing higher education isn’t
such a public function.2 Likewise, the complaint contains no facts suggesting
that the state was controlling these universities. In short, the facts presented
by Mr. McCullough do not suggest that it would be fair to attribute the actions
of Notre Dame University and Holy Cross College to the State of Indiana.
That leaves Dr. Serocynski. Mr. McCullough has alleged that Dr.
Serocynski conspired with Mr. Watts in a manner that may render her a state
actor. More information is needed to determine if Dr. Serocynski’s actions can
be fairly attributable to the state. See Rodriquez v. Plymouth Ambulance
Service, 577 F.3d 816, 824 (7th Cir. 2009) (permitting discovery on the issue of
state action when the issue could not be resolved on the face of the complaint
alone). Accordingly, this issue isn’t appropriately resolved at the screening
stage.
If Mr. McCullough’s allegations are true, his opportunity to complete his
associate’s degree and pursue a bachelor’s degree, thereby shortening his
sentence, was torpedoed by Ms. Bush’s actions and the consequences that

2

As explained previously, the actions of a private party can be deemed that of the state where the
private actor is performing a function traditionally reserved exclusively to the state. West v. Atkins, 487 U.S.
42, 56 (1988); Jackson v. Metro. Edison, 419 U.S. 345, 352 (1974). See also Vickery v. Jones, 100 F.3d 1334, 1346 (7th
Cir. 1996) (noting that “[t]he test for a finding of government action under this theory is whether the
defendants have performed functions that have been traditionally the exclusive prerogative of the
government,” and collecting Supreme Court cases where private action has been found to be a traditional
government function).

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followed. But, “[n]ot every wrong committed under color of law . . . is offered
redress by the Constitution[.]” Leslie v. Doyle, 125 F.3d 1132, 1138 (7th Cir.
1998).
Mr. McCullough has sued Warden Sevier, but alleges only that Warden
Sevier permitted Ms. Serocynski to enter the prison and operate the program.
While Warden Sevier does not appear to have played a role in determining that
Mr. McCullough should be banned from using the Jpay system, he asks that
Warden Sevier restore his Jpay privileges. It’s not clear that Warden Sevier was
aware of Mr. McCullough’s situation or played any role whatsoever in the
decision to alter his status, ban him from using the Jpay system, or preclude
him from completing his course work. “‘[N]o prisoner is entitled to insist that
one employee do another's job,’ and the division of labor is critical to the
efficient functioning of the organization.” Aguilar v. Gaston-Camara, 861 F.3d
626, 633 (7th Cir. 2017) (quoting Burks v. Raemisch, 555 F.3d 592, 594 (7th
Cir. 2009).
The division of labor is important not only to
bureaucratic organization but also to efficient
performance of tasks; people who stay within their
roles can get more work done, more effectively, and
cannot be hit with damages under §1983 for not being
ombudsmen. [The] view that everyone who knows
about a prisoner’s problem must pay damages implies
that [a prisoner] 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. The
Governor, and for that matter the Superintendent of

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Prisons and the Warden of each prison, is entitled to
relegate to the prison’s medical staff the provision of
good medical care.
Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). Warden Sevier isn’t the
cause of Mr. McCullough’s injury. At best, he failed to facilitate a remedy, and
that doesn’t state a claim upon which relief can be granted. Further, the ban
on utilizing the Jpay system doesn’t violate the First Amendment. While prison
inmates have a First Amendment right both to send and receive mail, Kaufman
v. McCaughtry, 419 F.3d 678, 685 (7th Cir. 2005), the Jpay system is only one
way of exercising that right. Mr. McCullough has other ways to communicate
with individuals outside the prison, including regular mail.
Mr. McCullough has sued David Tyson, Justin Watson, or Haroko
Harrison because, when he alerted them to his situation, they failed to award
or direct others to award him an associate’s degree. This is no different than
alleging that Warden Sevier failed to create a remedy when made aware of Mr.
McCullough’s complaint. If there was a constitutional violation here, these
individuals did not cause it — they merely failed to remedy it — and that’s not
enough to state a claim.
The same is true of Notre Dame University and Holy Cross College. If
there is a constitutional violation here, it was caused by either Dr. Serocynski
or Mr. Watts, not Notre Dame or Holy Cross College. Mr. McCullough has sued
Notre Dame University for failing to require that Dr. Serocynski and the
Westville Education Initiative follow their own policies regarding completing
work following a status change. The IDOC’s failure to follow its own policy

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doesn’t rise to the level of a constitutional violation. See Scott v. Edinburg, 346
F.3d 752, 760 (7th Cir. 2003) (“However, 42 U.S.C. § 1983 protects plaintiffs
from constitutional violations, not violations of state laws or, in this case,
departmental regulations and police practices.”). Even if Notre Dame University
was a state actor, its failure to follow its own policies likewise does not rise to
the level of a constitutional violation. Thus, Mr. McCullough has not alleged
facts showing that either Notre Dame University or Holy Cross College violated
his constitutional rights.
Mr. McCullough alleges that both Holy Cross College and Dr. Serocynski
are responsible for Ms. Bush’s actions, but Ms. Bush didn’t violate Mr.
McCullough’s constitutional rights. And even if she did, the doctrine of
respondeat superior, which allows an employer to be held liable for
subordinates’ actions in some types of cases, has no application to § 1983
actions. Moore v. State of Indiana, 999 F.2d 1125, 1129 (7th Cir. 1993).
Mr. McCullough has also sued Mr. Hicks. He alleges that Mr. Hicks
recommended that his Jpay privileges be suspended permanently, and he
questions the veracity of Mr. Hicks’s claim that he doesn’t have access to Mr.
McCullough’s Jpay messages. Once again, banning Mr. McCullough from using
the Jpay system when other means of communicating are available to him
doesn’t violate the constitution. See Kaufman v. McCaughtry, 419 F.3d at 685.
Whether Mr. Hicks had access to Mr. McCullough’s Jpay correspondence is
irrelevant, because that access or lack of access didn’t cause any of the harms
he complains of here.

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This brings us to the heart of Mr. McCullough’s complaint: whether
either Dr. Serocynski or Mr. Watts committed a constitutional violation. There
is no constitutional right to educational programs. Garza v. Miller, 688 F.2d
480, 486 (7th Cir.1982). Prisoners have neither a liberty nor a property interest
in educational programs. Higgason v. Farley, 83 F.3d 807, 809–10 (7th Cir.
1995). This is equally true of his inability to qualify for a reduction in his
sentence. Our court of appeals has held that denying a prisoner the
opportunity to earn credit time by taking educational courses states no claim
upon which relief can be granted in a § 1983 action.
Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41
L.Ed.2d 935 (1974), held that while the Due Process
Clause does not itself create a liberty interest in good
time credits, the state may create a liberty interest in
earned good time credits. Wolff, 418 U.S. at 557, 94
S.Ct. at 2975. According to Sandin, if “the State's
action will inevitably affect the duration of [the]
sentence,” there is due process protection, but there is
no such protection for action that merely might affect
the duration of the sentence. Sandin, 515 U.S. at ----,
115 S.Ct. at 2302. Even if Higgason had been given
the opportunity, it was not inevitable that he would
complete an educational program and earn good time
credits. Thus, denying the opportunity to earn credits
did not “inevitably affect the duration of the sentence,”
and did not infringe on a protected liberty interest.
Id.
Nonetheless, Mr. McCullough has alleged that he did everything he
needed to do to graduate, and that but for the actions of Ms. Serocynski
and Mr. Watts, he would inevitably have obtained his associates degree
because he had done enough work to obtain grades high enough to

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graduate even if he weren’t permitted to complete any further work for
the semester. Obtaining that associate’s degree, he says, would have
inevitably resulted in a one year time cut. Acordingly to the policy
attached to Mr. McCullough’s complaint, the determination of whether
Mr. McCullough would receive a credit time award for earning his
associate’s degree rests solely with the Director of Education of his
designee. (ECF 7-1 at 45.) It is, however, unclear from the complaint if
Mr. McCullough has met each of the requirements to receive a cedit time
award, and it is unclear if the Director of Education has the discretion to
deny an award even if all criteria are met. These issues require further
development of the record before they can be resolved. If the reduction in
sentence wasn’t inevitable, Mr. McCullough has no liberty interest, and
so no constitutional violation occurred. See Sandin v. Connor, 515 U.S.
472, 487 (due process is required only when state action “will inevitably
affect the duration of [a prisoner's] sentence”).
For these reasons, the court:
(1) GRANTS Anthony Kevin McCullough leave to proceed
against Kenneth Watts and Alicia Serocynski, Ph.D, in their
individual capacity for monetary damages for depriving him of his
liberty without due process of law;
(2) GRANTS Mr. McCullough leave to proceed against
Kenneth Watts and Alicia Serocynski, Ph.D, in their official

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capacity for injunctive relief to permit Mr. McCullough to obtain an
associate’s degree and be readmitted to the program;
(3) DISMISSES all other claims;
(4) DISMISSES Holy Cross College, Jamie Bush, David T.
Tyson, Justin Watson, Ph.D., University of Notre Dame, Hiroko
Harrison, Mark Sevier, and John Hicks;
(5) DIRECTS the clerk and the United States Marshals
Service to issue and serve process on Kenneth Watts and Alicia
Serocynski, Ph.D., at the Indiana Department of Correction with a
copy of this order and the complaint as required by 28 U.S.C. §
1915(d); and
(6) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that
Kenneth Watts and Alicia Serocynski, Ph.D. respond, as provided
for in the Federal Rules of Civil Procedure and N.D. Ind. L.R. 101(b), only to the claims for which the plaintiff has been granted
leave to proceed in this screening order.
SO ORDERED on February 4, 2019.
/s/ Robert L. Miller, Jr.
Judge
United States District Court

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