BOUYE JR v. SWEENEY II et al

Filing 10

ORDER DISMISSING COMPLAINT AND DIRECTING PLAINTIFF TO SHOW CAUSE - Bradford Bouye alleges violations of his civil rights in a prison disciplinary action and related habeas corpus action in this Court. Because Mr. Bouye is a prisoner, this Court has an obligation to screen the complaint. 28 U.S.C. § 1915A(a), (c). Because the complaint does not plead an actionable claim for relief, the Court directs Mr. Bouye to show cause why the case should not be dismissed. The complaint is dismissed for failure to state a claim upon relief may be granted. Mr. Bouye will have through June 16, 2023, to show cause why the Court should not dismiss this action and enter final judgment. Mr. Bouye's motion for change of judge, dkt. 8 , is den ied. Mr. Bouye's motion for copies, dkt. 9 , is granted. The clerk is directed to include a copy of the public docket sheet with this order. ***SEE ORDER*** (Copies to Plaintiff via U.S. mail). Signed by Judge James Patrick Hanlon on 5/18/2023. (JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BRADFORD DEAN BOUYE JR,

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Plaintiff,
v.
JAMES R. SWEENEY II, et al.,
Defendants.

No. 1:23-cv-00415-JPH-TAB

ORDER DISMISSING COMPLAINT AND DIRECTING PLAINTIFF TO SHOW CAUSE
Bradford Bouye alleges violations of his civil rights in a prison disciplinary
action and related habeas corpus action in this Court. Because Mr. Bouye is a
prisoner, this Court has an obligation to screen the complaint. 28 U.S.C. §
1915A(a), (c). Because the complaint does not plead an actionable claim for relief,
the Court directs Mr. Bouye to show cause why the case should not be dismissed.
I. Screening Standard
When screening a complaint, the Court must dismiss any portion that is
frivolous or malicious, fails to state a claim for relief, or seeks monetary relief
against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). To
determine whether the complaint states a claim, the Court applies the same
standard as when addressing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). See Schillinger v. Kiley, 954 F.3d 990, 993 (7th Cir. 2020).
Under that standard, a complaint must include "enough facts to state a claim to
relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). "A claim has facial plausibility when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
Court construes pro se complaints liberally and holds them to a "less stringent
standard than formal pleadings drafted by lawyers." Cesal v. Moats, 851 F.3d
714, 720 (7th Cir. 2017).
II. The Complaint
Mr. Bouye seeks damages from three defendants: District Judge James
Sweeney, Deputy Attorney General Katherine Cornelius, and Correctional Officer
J. Niederhelman. He bases his claims on the following allegations.
In August 2021, Mr. Bouye underwent a disciplinary hearing for
assaulting a staff member. He was found guilty and assessed sanctions,
including a demotion in credit-earning class and time in restrictive housing. Dkt.
1-1 at 2. The prison staff denied his appeals. Id. at 4–5.
Mr. Bouye petitioned for a writ of habeas corpus in this Court. See Bouye
v. Warden, No. 1:21-cv-02999-JRS-TAB. On February 14, 2023, while the
habeas action was pending, the Indiana Department of Correction vacated Mr.
Bouye's disciplinary conviction and sanctions and designated the matter for
rehearing. Dkt. 1-1 at 6. Ms. Cornelius moved to dismiss the habeas action as
moot. Id. at 9–10. Judge Sweeney granted the motion on February 28, dismissed
the case for lack of jurisdiction, and entered final judgment. Id. at 16–19.
Judge Sweeney's dismissal order included the following point of
clarification: "If Mr. Bouye is deprived of credit time or demoted in credit-earning

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class as a result of the rehearing, he may file a new habeas petition challenging
any violations of his due process rights in that proceeding." Id. at 17.
Mr. Bouye was found guilty at the rehearing. Id. at 3. He was not
sanctioned with additional time in restricted housing, but he was again
sanctioned with a credit-class demotion. Id.
Mr. Bouye contends that Officer Niederhelman could not be an impartial
decisionmaker for his rehearing because she notified him of his charges in the
initial proceeding. Rather than pursue a habeas action as directed, he filed this
suit for damages, asserting that the defendants violated his due process rights.
III. Dismissal of Complaint
Claims against Judge Sweeney are dismissed as frivolous because "the
bringing of a suit against judges is not a proper method of challenging their
decisions" and "because judges have absolute immunity from damages suits
challenging their judicial acts." Tolefree v. Cudahy, 49 F.3d 1243, 1243 (7th Cir.
1995).
Claims against Ms. Cornelius are also dismissed for failure to state a
claim upon which relief may be granted. Like judges, deputy attorneys general
"are absolutely immune from claims for damages under § 1983." Nowicki v.
Delao, 506 F. App'x 514, 517 (7th Cir. 2013) (citing Doyle v. Camelot Care
Centers, 305 F.3d 603, 623 (7th Cir. 2002); Lewis v. Mills, 677 F.3d 324, 331–
32 (7th Cir. 2012)).
Finally, claims against Officer Niederhelman are dismissed for failure to
state a claim upon which relief may be granted. It is well settled that Section

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"1983 cannot be used to seek damages when the relief necessarily implies the
invalidity" of a prison disciplinary conviction "that remains in force." Haywood
v. Hathaway, 842 F.3d 1026, 1028 (7th Cir. 2016) (citing Heck v. Humphrey, 512
U.S. 477 (1994); Edwards v. Balisok, 520 U.S. 641 (1997)). Moreover, "§ 1983
cannot be used to contest the fact or duration of confinement." Id. (citing Preiser
v. Rodriguez, 411 U.S. 475 (1973)). Before seeking damages, the inmate must
obtain favorable termination of the disciplinary charge and sanctions, and he
must pursue that termination through a habeas action—as Judge Sweeney
encouraged Mr. Bouye to do when he dismissed the first habeas action as moot.
See Haywood, 842 F.3d at 1029 (citing Nelson v. Campbell, 541 U.S. 637, 646
(2004)).
IV. Pending Motions
Mr. Bouye's motion for change of judge, dkt. [8], is denied. A judge "shall
proceed no further" in an action if a party "makes and files a timely and sufficient
affidavit that the judge . . . has a personal bias or prejudice either against him
or in favor of any adverse party." 28 U.S.C. § 144. To achieve disqualification, a
litigant must demonstrate "actual bias" in the form of "personal animus or
malice." Hoffman v. Caterpillar, Inc., 368 F.3d 709, 718 (7th Cir. 2004).
Additionally, a judge "shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned." 28 U.S.C. § 455(a). A litigant
seeking recusal under § 455(a) must show that "an objective, disinterested
observer fully informed of the reasons for seeking recusal would entertain a

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significant doubt that justice would be done in the case." United States v. Barr,
960 F.3d 906, 919 (7th Cir. 2020) (internal quotations omitted).
Mr. Bouye cites two grounds for recusal. First, he notes that the
undersigned judge presided over Bouye v. Regal, et al., No. 1:21-cv-02661-JPHTAB, which was dismissed for failure to state a claim. But "judicial rulings alone
will almost never constitute a valid basis for disqualification under § 144."
Hoffman, 368 F.3d at 718. Mr. Bouye also implies that the Court showed bias by
requiring him to file a motion for leave to proceed in forma pauperis and support
it with an inmate trust account statement, see dkt. 5, rather than simply grant
the request at the end of his complaint to proceed without prepaying the filing
fee. But a "request for a court order must be made by motion" and not buried in
a complaint. Fed. R. Civ. P. 7(b)(1); S.D. Ind. L.R. 7-1(a). And the requirement
that a motion for leave to proceed in forma pauperis be supported by an inmate
trust account statement is a product of federal statute, not this Court's
judgment. See 28 U.S.C. § 1915(a)(2). In short, Mr. Bouye could expect to receive
a comparable order from any federal judge.
Mr. Bouye's motion for copies, dkt. [9], is granted. The clerk is directed
to include a copy of the public docket sheet with this order. If Mr. Bouye wishes
for the Court to send him copies of specific documents, he must request them
by docket number. If Mr. Bouye wishes to receive file-stamped copies of
documents he submits to the Court for filing, he must include a self-addressed
envelope with adequate postage. S.D. Ind. L.R. 5-10.

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V. Conclusion
The complaint is dismissed for failure to state a claim upon relief may
be granted.
Mr. Bouye will have through June 16, 2023, to show cause why the Court
should not dismiss this action and enter final judgment.
Mr. Bouye's motion for change of judge, dkt. [8], is denied. Mr. Bouye's
motion for copies, dkt. [9], is granted. The clerk is directed to include a copy of
the public docket sheet with this order.
SO ORDERED.
Date: 5/18/2023

Distribution:
BRADFORD DEAN BOUYE JR
914329
PENDLETON – CF
PENDLETON CORRECTIONAL FACILITY
Inmate Mail/Parcels
4490 West Reformatory Road
PENDLETON, IN 46064

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