MURRAY v. FEDERAL BUREAU OF PRISONS et al

Filing 69

ENTRY DENYING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING ACTION - Plaintiff filed a "Motion for Judicial Screening of Complaints" 29 and "Motion to Expedite Judicial Screening of Complaints" 40 . While those motions w ere granted in part, this Order finally resolves the request to screen. Petitioner's request to proceed in forma pauperis must be DENIED. Dismissal of the action pursuant to 28 U.S.C. § 1915A(b) is thereforemandatory and judgment consistent with this Entry shall now issue. (See Entry.) Copy to petitioner via US Mail. Signed by Judge William T. Lawrence on 1/3/2013.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

JAMES MURRAY a/k/a
JAMES HINES,
Petitioner,
vs.
FEDERAL BUREAU OF PRISONS, et al.,
Respondents.

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2:11-cv-30-WTL-WGH

ENTRY DENYING LEAVE TO PROCEED IN
FORMA PAUPERIS AND DISMISSING ACTION1
Petitioner, James Murray a/k/a James Hines (hereafter “Murray”), filed this suit
and seeks leave to proceed in forma pauperis. The factual basis for this claim is that
Petitioner is a “bona fide prison system analysis; and bona fide jailhouse lawyer.”
(Petition for Judicial Review at 4). He further alleges that “[w]ithin the pass (sic) ten
years while in federal custody, Petitioner has been confind (sic) to six U.S.P. from north
to south to east from west.” (Id. at 6). He alleges that the Federal Bureau of Prisons,
“pursuant to a pattern and practice, custom and usage of resistance,” violates the
federally-protected rights of Petitioner and others who are jailhouse lawyers and subjects
them to retaliatory treatment. (Id.). Petitioner alleges that his status as a bona bide
jailhouse lawyer arises under the Ninth Amendment to the U.S. Constitution. Petitioner
cites to District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed2d 637
(2008), and Sigafus v. Brown, 416 F.2d 105 (7th Cir. 1969), as the basis for such a
constitutional right.
Because Murray is a prisoner, his complaint is subject to the screening required by
28 U.S.C. § 1915A(b). Pursuant to this statute, “[a] complaint is subject to dismissal for
failure to state a claim if the allegations, taken as true, show that plaintiff is not entitled to
relief.” Jones v. Bock, 127 S.Ct. 910, 921 (2007). “[A] complaint must always . . .

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Plaintiff filed a “Motion for Judicial Screening of Complaints” (Docket 29) and “Motion
to Expedite Judicial Screening of Complaints” (Docket No. 40). While those motions were
granted in part, this Order finally resolves the request to screen.

allege ‘enough facts to state a claim to relief that is plausible on its face.’” Limestone
Development Corp. v. Village of Lemont, Ill., 520 F.3d 797, 803 (7th Cir. 2008) (quoting
Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009). Plausibility is defeated, however, if a plaintiff
“pleads himself out of court when it would be necessary to contradict the complaint in
order to prevail on the merits.” Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir.
2008); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)
(“Dismissal under Rule 12(b)(6) can be based on the lack of a cognizable legal theory or
the absence of sufficient facts alleged under a cognizable legal theory.”). Pro se
complaints such as that filed by Murray are construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers. Obriecht v. Raemisch, 517 F.3d 489,
491 n.2 (7th Cir. 2008).
A review of the authorities suggested by Petitioner does not establish that there is
any constitutionally protected right to the status of being a jailhouse lawyer. Moreover,
Petitioner has failed to plead any plausible set of facts establishing retaliation. The mere
fact that Petitioner has been incarcerated in six different penitentiaries over a ten year
period of time does not suggest retaliation to this court.
Therefore, because Petitioner’s claim is not supported by law and does not recite a
plausible set of facts alleging retaliation, his request to proceed in forma pauperis must be
DENIED. Dismissal of the action pursuant to 28 U.S.C. § 1915A(b) is therefore
mandatory, Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 775 (7th Cir. 2002),
and judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.
01/03/2013
Date: ___________________

_______________________________

Distribution:

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

JAMES MURRAY
09548-007
LEWISBURG - USP
LEWISBURG U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 1000
LEWISBURG, PA 17837

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