ROBINSON v. UNITED STATES OF AMERICA et al

Filing 12

ENTRY Screening Amended Complaint, Dismissing Insufficient Claims, and Directing Service of Process - The plaintiff alleges that Officer D. Cox applied excessive force to him on or about September 1, 2015. This Eighth Amendment claim shall proceed. If the plaintiff believes that he asserted any additional claims which were not recognized in this Entry he should notify the Court of this fact by no later than May 20, 2016. The clerk is designated pursuant to Rule 4(c)(3) of the Federal Rules of Civil Procedure to issue process to defendant Officer D. Cox and the officials designated pursuant to Rule 4(i)(3). The clerk shall update the docket to reflect the dismissal of all defendants except Officer D. Cox. (See Entry.) Signed by Judge William T. Lawrence on 4/19/2016. Copies distributed pursuant to distribution list. (GSO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

LOUSHAWN A. ROBINSON,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
FCI/USP TERRE HAUTE,
CHARLIE DANIELS Warden,
MOORE S.I.S. Lt.,
THOMPSON SHU Lt.,
GILBERT C.O.,
PENMAN C.O.,
BROOKS C.O.,
MISC UNKNOWN SHU STAFF,
D. COX,
J. HAYDEN,
L. MOSELEY,
Defendants.

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No. 2:16-cv-00012-WTL-DKL

Entry Screening Amended Complaint, Dismissing Insufficient Claims,
and Directing Service of Process
I.

Screening

A. Background
A collection order has been issued to collect the filing fee in monthly installments. The
Court will now screen the amended complaint filed on April 6, 2016, in accordance with 28 U.S.C.
§ 1915A(b).
The plaintiff, Loushawn Robinson (“Mr. Robinson”), is a federal inmate confined at the
United States Penitentiary in Terre Haute, Indiana (“USP-TH”). He names the following
defendants: 1) Officer D. Cox; 2) Officer J. Hayden; 3) Lt. F. Granger; 4) Officer N. Montisano;

5) Hearing Officer D. Ezekiel; and 6) Unit Manager L. Moseley. This is a civil rights complaint
brought pursuant to the theory recognized in Bivens v. Six Unknown Federal Narcotics Agents,
403 U.S. 388 (1971). Mr. Robinson seeks compensatory and punitive damages and injunctive
relief.
B. Allegations
Mr. Robinson alleges that on or about September 1, 2015, he was assaulted by Officer D.
Cox. He alleges that Officer Cox sprayed him with O.C. and charged him, trying to body slam
him, causing them both to fall to the ground.
Mr. Robinson alleges that in December 2015, Officer J. Hayden removed personal property
from his cell but never inventoried it or returned it to him. He alleges that he filed a Property Loss
Form asking for relief, but it was denied. Mr. Robinson alleges that Officer Hayden was negligent
in handling his property.
Mr. Robinson alleges that Officer N. Montisano wrote a false incident report on March 5,
2016. He alleges that since October 26, 2015, Hearing Officer E. Ezekiel has abused his authority
by assessing excessive monetary sanctions against Mr. Robinson in disciplinary proceedings.
Although on page 2 of the amended complaint, Mr. Robinson lists his claim against Lt. F. Granger
as “lieing [sic] in report,” he alleges no facts in support of that claim.
Mr. Robinson’s final claim is that Unit Manager Moseley is violating his due process rights
by refusing to take any more of his requests for mailing stamps. Mr. Mosely is allegedly not giving
Mr. Robinson any incentive to correspond outside the prison walls.
C. Insufficient Claims
Some of Mr. Robinson’s claims are legally insufficient, while one will be allowed to
proceed, as discussed below:

The Court declines to exercise supplemental jurisdiction over the state law negligence
claim against Officer Hayden because the destruction or loss of property claim does not “share a
common nucleus of operative facts with a federal claim properly brought before the court,” that of
excessive force. Bailey v. City of Chicago, 779 F.3d 689, 696 (7th Cir. 2015); 28 U.S.C. § 1367(c).
The negligence claim against Officer Hayden is dismissed for lack of subject matter
jurisdiction. In addition, the Court notes that inmates do not have a Fourth Amendment right
protecting against the seizure of property from a prison cell. See Hudson v. Palmer, 468 U.S. 517,
536 (1984) (“We hold that the Fourth Amendment has no applicability to a prison cell.”).
Mr. Robinson’s claim against Officer N. Montisano is that he wrote a false conduct report.
Mr. Robinson also challenges the sanctions imposed by Hearing Officer E. Ezekiel in a
disciplinary proceeding. “Heck [v. Humphrey, 512 U.S. 477 (1994),] bars any suit for damages
premised on a violation of civil rights if the basis for the suit is inconsistent with or would
undermine the constitutionality of a conviction or sentence.” Wiley v. City of Chicago, 361 F.3d
994, 996 (7th Cir. 2004). This same rule applies to “convictions” incurred in prison disciplinary
proceedings. See Edwards v. Balisok, 520 U.S. 641 (1997) (a claim for damages that would call
into question the validity of a prison disciplinary finding is barred); Walker v. Taylorville
Correctional Ctr., 129 F.3d 410, 413 (7th Cir. 1997); Lusz v. Scott, 126 F.3d 1018, 1021 (7th Cir.
1997). The plaintiff does not allege that his disciplinary convictions have been overturned or
otherwise invalidated and so any due process claims against Officer N. Montisano and Hearing
Officer D. Ezekiel based on any disciplinary convictions are dismissed without prejudice as
premature.
The claim against Lt. F. Granger is dismissed for failure to state a claim upon which
relief can be granted.

The claim against Unit Manager Moseley concerning stamps does not invoke any federally
secured right. The Court has considered whether these facts would support a First Amendment
denial of access to the courts claim, however, Mr. Robinson has not alleged any resulting injury,
meaning that “some action by the prison has frustrated or is impeding an attempt to bring a
nonfrivolous legal claim.” In re Maxy, 674 F.3d 658, 661 (7th Cir. 2012). See also Marshall v.
Knight, 445 F.3d 965, 968 (7th Cir.2006) (“[T]he mere denial of access to a prison law library or
to other legal materials is not itself a violation of a prisoner's rights ….”). The claim against Unit
Manager Moseley is dismissed for failure to state a claim upon which relief can be granted.
No partial final judgment shall issue at this time with respect to the claims dismissed in
this Entry.
D. Claim That Shall Proceed
The plaintiff alleges that Officer D. Cox applied excessive force to him on or about
September 1, 2015. This Eighth Amendment claim shall proceed.
If the plaintiff believes that he asserted any additional claims which were not recognized
in this Entry he should notify the Court of this fact by no later than May 20, 2016.
II. Service of Process
The clerk is designated pursuant to Rule 4(c)(3) of the Federal Rules of Civil Procedure
to issue process to defendant Officer D. Cox and the officials designated pursuant to Rule 4(i)(3).
Process shall consist of a summons, which shall be served with a copy of the amended complaint
(with attachments) filed on April 6, 2016 (docket 11), and a copy of this Entry by the Marshal for
this District or his deputy, at the expense of the United States.

The clerk shall update the docket to reflect the dismissal of all defendants except Officer
D. Cox.
IT IS SO ORDERED.

Date: 4/19/16

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

Distribution:
LOUSHAWN A. ROBINSON
56279-037
TERRE HAUTE – FCI
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808
United States Marshal
46 East Ohio Street
179 U.S. Courthouse
Indianapolis, IN 46204
NOTE TO CLERK: PROCESSING THIS DOCUMENT REQUIRES ACTIONS IN ADDITION TO DOCKETING AND DISTRIBUTION.