McCullough v. Holy Cross College et al
Filing
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OPINION AND ORDER The Court GRANTS Anthony Kevin McCullough until July 16, 2018, to file an amended complaint. If Mr. McCullough doesnt respond by that deadline, this case will be dismissed without further notice pursuant to 28 U.S.C. § 1915A because the current complaint does not state a claim. Signed by Judge Robert L Miller, Jr on 6/8/18. (Copy mailed as directed in Order, form enclosed)(kjp)
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-MGG
OPINION AND ORDER
Anthony Kevin McCullough, a prisoner without a lawyer, filed a
complaint naming seven defendants. “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, an inmate housed at the Westville
Correctional Center, has been taking college classes through the Holy Cross,
University of Notre Dame, Westville Education Initiative. He was on course to
graduate with an associate degree in liberal studies on December 16, 2017.
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 and wasn’t awarded a degree. As a result, 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, and Hiroko Harrison (Registrar of
Holy Cross College). He asks that an associate 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. When
discovered, 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 did not 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 both had a
good cry.
(ECF 1 at 6.) 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.
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(Id.). Mr. McCullough tried to remove this person from his Jpay list, but he was
unable to do so. A reply came a few days later, revealing to Mr. McCullough for
the first time that the author was Ms. Bush.
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 occurred between Mr. McCullough and Ms. Bush.
On November 30, 2017, while in the middle of giving a final oral
presentation, Mr. McCullough was removed from class and told 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
1-1 at 13.)
Also on November 30, 3017, Mr. McCullough wrote to Dr. Serocynski
telling 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 degree as
scheduled and receive his one year time cut. (ECF 1-1 at 15-16.) Mr.
McCollough knew from Dr. Serocynski’s prior 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. (ECF 1 at 7.) He wrote his professors, too, asking that he be allowed
to take his final exams and turn in his final papers. But, Dr. Serocynski told
the professors not to accept any work turned in by Mr. McCullough. Rather
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than being permitted to finish his course work, Mr. McCullough was given
incompletes.
Mr. McCullough met with Kenneth 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. (ECF 1 at 8.) 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 1 at 8.) It was further
explained that the reason was “because Alicia Serocynski does not like you,
and she is choosing to give you an incomplete instead of your degree.” (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.
Alicia Serocynski said, ‘she is not letting you return to the program,’ and she
doesn’t like you so she is doing this because she can.” (Id.)
“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).
Mr. McCullough has sued seven defendants, but he hasn’t alleged that any of
them were acting under color of state law. While the conduct of private actors
can transform them into state actors for § 1983 purposes, the facts must
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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 in which 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).
While this inquiry must be decided on a case by case basis, Mr.
McCullough hasn’t alleged facts from which it can be plausibly inferred that
any named defendant could be fairly deemed a state actor. He hasn’t alleged
that anyone at the prison conspired with these defendants to prevent him from
either graduating or receiving a reduced sentence. He hasn’t alleged that the
state directed this outcome; instead, he places the blame squarely with the
educational institutions and their employees or volunteers. He hasn’t alleged
significant entwinement between Westville Correctional Institution and either
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Notre Dame University or Holy Cross College.1 He hasn’t alleged that the state
delegated a function for which it couldnt disclaim responsibility to the
defendants: providing higher education is not such a public function.2 In short,
the facts presented by Mr. McCullough don’t suggest that it would be fair to
attribute the actions of these defendants to the State of Indiana.
The court will give Mr. McCullough a chance to file an amended
complaint if he thinks he can state a claim upon which relief can be granted.
See Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013).
For these reasons, the court:
(1) DIRECTS the clerk to place this cause number on a blank
Prisoner Complaint (INND Rev. 8/16) and send it to Anthony Kevin
McCullough; and
(2) GRANTS Anthony Kevin McCullough until July 16, 2018, to
file an amended complaint on that form.
1
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 1-1 at 2.) While Westville permits the program to
operate within the facility and rewards inmates who obtain degrees through the program, that is not
sufficient to transform private action into action fairly attributable to the state.
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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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If Mr. McCullough doesn’t respond by that deadline, this case will be dismissed
without further notice pursuant to 28 U.S.C. § 1915A because the current
complaint does not state a claim.
SO ORDERED on June 8, 2018
/s/ Robert L. Miller, Jr.
Judge
United States District Court
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