Bernegger v. Adams et al

Filing 21

MEMORANDUM OPINION re 20 Judgment,. Signed by Michael P. Mills on 6/1/10. (cr, USDC)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI WESTERN DIVISION PETER BERNEGGER v. SHERRYLN ADAMS JENNIFER MAUNEY ROBERT J. MIMS W. ALLEN PEPPER, JR. MICHAEL EAST PARKER HOWARD U. S. MARSHAL SERVICE BUREAU OF PRISONS JEFF BUTLER SAM MOORE 22 "JOHN DOE" DEFENDANTS 5 "JANE DOE" DEFENDANTS MEMORANDUM OPINION This matter comes before the court on the pro se prisoner complaint of Peter Bernegger, who challenges the conditions of his confinement under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). For the purposes of the Prison Litigation Reform Act, the court notes that the plaintiff was incarcerated when he filed this suit. For the reasons set forth below, the plaintiff's claims against the following defendants will be dismissed with prejudice: Sarah Adams, Jennifer "Doe," Robert J. Mims, W. Allen Pepper, Michael East, Parker Howard, U. S. Marshal Service, Bureau of Prisons, Jeff Butler, and Sam Moore. The plaintiff will be given the opportunity to amend his complaint to include the following claims (specifying which defendants are involved with each claim): exposure to environmental tobacco smoke; failure to respond to grievances; denial of access to legal materials; and denial of access to his attorney. The following claims will be PLAINTIFF No. 3:10CV5-M-A

DEFENDANTS

dismissed for failure to state a claim upon which relief could be granted: forcing the plaintiff to listen to the television; forced participation in a conspiracy (watching pirated DVD movies; failure to protect the plaintiff; and mail tampering. A hearing as set forth in Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985) regarding these claims will be set by separate order. Factual Allegations On November 12, 2009, the plaintiff Peter Bernegger was found guilty by a jury of two counts of fraud under 18 U.S.C. § 1341 and one count of bank fraud under 18 U.S.C. § 1344.1 Bernegger alleges a host of allegations against numerous defendants in this case, as summarized below. Claims Against Assistant United States Attorney Robert Mims Bernegger alleges that one of the prosecutors, Robert Mims, committed the crime of extortion by informing Bernegger's family that if they would pay approximately $2,000,000.00 in restitution, then the government would dismiss the criminal charges against Bernegger. Bernegger also alleges that Robert Mims "leaked" information about the case, thus tampering with witnesses in the case. Finally, Bernegger alleges that Robert Mims sought to have Bernegger enter a plea of guilty to counts not charged against him. Claims Against Sherryln Adams and Jennifer Mauney Bernegger alleges that Ms. Adams and Ms. Mauney, who work in the Clerk's Office, did not file on the docket pleadings Bernegger submitted in his criminal case. Claims Against United States District Judge W. Allen Pepper Bernegger alleges that Judge Pepper proceeded with the criminal case against Bernegger
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Bernegger has appealed his conviction and sentence. -2-

in the absence of subject matter jurisdiction. In addition, Bernegger alleges that Judge Pepper denied Bernegger the right to face his accuser Leo Benieck, who died before the criminal trial commenced. Further, Bernegger alleges that Judge Pepper denied him the right to state an objection on the record. See 1:07CR176-P (docket entry 112, p. 8). Finally, Bernegger alleges that Judge Pepper forced Bernegger, upon penalty of incarceration, to sign a contract. See id., p. 9-11. Claims Against Defendants in the Bolivar County Regional Correctional Facility Bernegger alleges that unnamed "defendants" in the Bolivar County Regional Correctional Facility forced Bernegger to listen to loud and violent television shows. He also alleges that these defendants forced him to participate in a conspiracy by playing "bootlegged" copies of DVD movies in his presence. In addition, Bernegger alleges that these defendants have endangered his health by exposing him to environmental tobacco smoke. Further, he alleges that the defendants failed to protect his safety by housing him with state and county inmates, denied him access to the telephone (except for one costing $5.00 to $7.50 per minute), denied him access to legal books, denied him the right to speak privately with his attorney, and tampered with his mail by stamping outgoing mail with the following message, in bold red letters: Warning Not responsible for letter content or inmate purchases Bolivar Co. Reg. Correctional Facility Cleveland, MS 38732. Failure to Make Any Allegations Against Some Defendants Bernegger has not made allegations of any kind against the following defendants, all of whom will be dismissed from this case with prejudice: Michael East, Parker Howard, U. S.

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Marshall Service, Bureau of Prisons, Jeff Butler, and Sam Moore. Allegations Failing to State a Claim The following allegations will be dismissed for failure to state a claim upon which relief could be granted: forced listening to vulgar movies, watching "bootlegged" movies in the plaintiff's presence, failure to protect against harm from other inmates, denial of access to the telephone, and mail tampering. General Conditions of Confinement: Forced Listening to Vulgar Movies, Limited Access to Telephone Bernegger has alleged no harm from hearing vulgar movies; as such, that claim must fail. Further, he has access to a telephone, albeit a costly one to use. As such, his claim of denial of access to the telephone must fail. Both of these allegations are part of a larger claim ­ general conditions of confinement. "[T]he Eighth Amendment may afford protection against conditions of confinement which constitute health threats but not against those which cause mere discomfort or inconvenience." Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir.1989), cert. denied, 493 U.S. 969 (1989)(citation omitted). "Inmates cannot expect the amenities, conveniences, and services of a good hotel." Id. at 849 n.5 (citation omitted). It is clear that prison officials have certain duties under the Eighth Amendment, but these duties are only to provide prisoners with "humane conditions of confinement," including "adequate food, clothing, shelter, and medical care . . . ." Woods v. Edwards, 51 F.3d 577, 581 n.10 (5th Cir. 1995) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). Based upon a review of the "totality of the circumstances," McCord v. Maggio, 910 F.2d 1248 (5th Cir. 1990), the court holds that these claims do not rise to the level of a constitutional violation. Bernegger has not identified any "basic human need" which he was

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denied for an unreasonable period of time. See Woods, 51 F.3d at 581. This claim will be dismissed for failure to state a claim. Failure to Protect Regarding his claim that prison officials failed to protect him from harm, Bernegger has not identified any individuals who mean him harm; nor has he alleged that he has, in fact, been harmed. In addition, Bernegger has enunciated no specific facts supporting a claim for failure to protect him. Deliberate indifference is "the proper standard to apply in the context of convicted prisoners who claim[] . . . the failure to protect." Grabowski v. Jackson County Public Defenders Office, 47 F.3d 1386, 1396 (5th Cir. 1995). In interpreting the applicable mental standard for "deliberate indifference," the standard is not met "unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Bernegger has not alleged that the defendants "consciously disregard[ed] a substantial risk of serious harm," which is necessary if the plaintiff is to state a claim cognizable under § 1983. Id. at 826 (citation omitted). He has not identified a specific person who intends to harm him ­ or otherwise shown that he faces danger to his person. These allegations fall far short of deliberate indifference, and this claim will be dismissed with prejudice for failure to state a claim upon which relief could be granted. "Forced" Participation in a Conspiracy One cannot be part of a conspiracy without agreeing to do so; thus, Bernegger, under his own allegations, could not be charged with such a conspiracy. The elements of a conspiracy are "an agreement by two or more persons to combine efforts for an illegal purpose and an overt act -5-

by one of the members in furtherance of the agreement." United States v. Fischetti, 450 F.2d 34 (5th Cir. 1971). Bernegger alleges that he was "forced" to hear the pirated DVD's; as such, he did not agree to take part in the conspiracy. This claim is without merit and will be dismissed. Mail Tampering Bernegger also complains that the jail defendants are tampering with his outgoing mail by stamping a warning upon it that the mail originates from a penal institution. Bernegger claims that the warning, stamped in red upon all of his outgoing mail, causes him embarrassment and humiliation. To prevent the sending or receiving of contraband, "prison authorities may open a prisoner's mail for inspection. Guajardo v. Estelle, 580 F.2d 748, 759 (5th Cir.1978). In addition, Bernegger has not alleged that problems with his mail denied him meaningful access to the courts. See Bounds v. Smith, 430 U.S. 817, 821-23, 97 S.Ct. 1491, 1494-96, 52 L.Ed.2d 72 (1977); Jackson v. Procunier, 789 F.2d 307, 311-12 (5th Cir.1986). For these reasons, this claim, too, fails on its face. Bernegger has not alleged that the jail defendants have opened, inspected, or censored the outgoing mail and, whether he wishes to accept it or not, he has been convicted of a felony ­ and he does reside in a penal institution. The practice of stamping mail leaving a penal institution is a security measure to ensure that recipients of the mail are aware of its origin. Bernegger's mail tampering claim will be dismissed for failure to state a constitutional claim. Assistant United States Attorney Robert Mims All of Bernegger's claims against defendant Mims must be dismissed. Bernegger alleges that Mims committed the crime of extortion by telling Bernegger's family that if they would pay about $2,000,000.00 in restitution, then the charges against him would be dismissed. Bernegger simply does not have standing to assert this claims, as he did not allege that defendant Mims -6-

sought money from him, but instead, from his family. This claim will be dismissed for failure to state a constitutional claim. Bernegger also alleges that defendant Mims "leaked" information about the case and thus influenced a witness. Bernegger does not allege what information Mims conveyed, which witness was allegedly influenced, or precisely how the information affected the trial. This allegation will likewise be dismissed for failure to state a claim. In addition, Bernegger alleges that defendant Mims tried to convince Bernegger to plead guilty to counts for which he was not charged. As Bernegger was represented by counsel ­ and as he did not plead guilty to an uncharged offense ­ then this allegation does not state a claim and will therefore be dismissed. Mims Enjoys Prosecutorial Immunity Bernegger's claims against defendant Mims will also be dismissed because, as a prosecutor, he has absolute immunity from civil damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971) when the acts alleged are performed in the course and scope of his duties as an advocate. Imbler v. Pachtman, 424 U.S. 409, 427 (1976); Kalina v. Fletcher, 522 U.S. 118, 126 (1997); Spivey v. Robertson, 197 F.3d 722, 726 (5th Cir. 2000). Traditional functions of an advocate are those functions which are intimately associated with the judicial phase of the criminal process, including, but not limited to whether to present a case to a grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against a particular defendant, which witnesses to call, and what other evidence to present. Imbler, 42 U.S. at 430-431, n. 33. A prosecutor is absolutely immune from any suit arising out of his duties as an advocate, regardless of the egregious nature of the allegations. Imbler v. Pachtman, 424 U.S. 409 (1976)(prosecutor -7-

absolutely immune from liability where he knowingly used perjured testimony, deliberately withheld exculpatory evidence, and failed to disclose all facts casting doubt upon state's testimony); Esteves v. Brock, 106 F.3d 674 (5th Cir. 1997)(prosecutor absolutely immune from claims of using peremptory challenges in racially discriminatory manner); Brandley v. Keeshan, 64 F.3d 196 (5th Cir. 1995)(prosecutory absolutely immune from claim of witness intimidation and suppression of evidence, even if prosecutor knew of and directed witness intimidation and suppression of evidence); Boyd v. Biggers, 31 F.3d 279, 285 (5th Cir. 1994)(prosecutor immune from suit alleging knowing use of perjured testimony, malicious prosecution, and conspiring with the judge to predetermine the outcome of a judicial proceeding). Such immunity is necessary; otherwise [t]he public trust of the prosecutor's office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's advocate. Further, if the prosecutor could be made to answer in court each time such a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law. Imbler, 424 U.S. at 425 (citations omitted). As it is clear Mims is immune from suit, the claims against him in the instant suit will be dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B). Neitzke v. Williams, 490 U.S. 319, 327 (1989); Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995). Failure to Place Bernegger's Pro Se Submissions on the Court Docket According to Bernegger's allegations, defendants Adams and Mauney (who work in the Clerk's Office) failed to place various pro se pleadings on the docket at times on and after July 20, 2009. These defendants were simply complying with an order entered on the docket by

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United States District Judge W. Allen Pepper. The order, filed July 8, 2009, directed Bernegger to ensure that all papers he wished to submit to the court be filed by appointed counsel ­ not by Bernegger, pro se. Two days later, the Magistrate Judge assigned to Bernegger's criminal case declined to consider pleadings Bernegger attempted to file pro se, citing the court's July 8, 2009, order. Despite verbal admonitions by the court ­ and written court orders ­ Bernegger continued submitting numerous pro se pleadings to the court. Indeed, a later order of the court (issued during the pendency of Bernegger's appeal) clarified the court's intent, "Effective immediately, the Clerk's Office of the Northern District of Mississippi and its staff are ordered to not file on the docket, nor acknowledge receipt of, any documents sent by Peter Bernegger or on his behalf, except those submitted by his court appointed attorney John H. Daniels, III, in this matter as long as the appeal is pending and any documents received, except those submitted by Attorney John H. Daniels, III, shall be placed in a correspondence file." Order of February 2, 2010, United States v. Peter Bernegger, 1:07CR176-P-D. Defendants Adams and Mauney were simply following an order issued by the court. As such, Bernegger's claims against these two defendants will be dismissed with prejudice for failure to state a claim upon which relief could be granted. United States District Judge W. Allen Pepper Enjoys Absolute Judicial Immunity Under the facts of the instant case, Judge Pepper enjoys absolute immunity from suit, as all of the acts complained of were judicial in nature. In Sindram v. Suda, 986 F.2d 1459 (D.C. Cir. 1993), Sindram, a very frequent filer in the Courts of the District of Columbia sued in the United District Court seeking compensatory and punitive damages from two judges and several clerks of the D.C. Superior Court. In dismissing the complaint, the lower court relied on the

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doctrine of absolute judicial immunity. The Appellate Court affirmed the dismissal of Sindram's action, imposing sanctions for falsifying affidavits in support of in forma pauperis petitions and prohibiting Sindram from filing any new civil actions pro se before paying the sanctions, holding that these actions were well within the judges' judicial capacity and jurisdiction. Courts must construe a judge's jurisdiction broadly where the issue is the immunity of the judge. Stump v. Sparkman, 435 U.S. 349, 356 (1978); Crooks v. Maynard, 913 F.2d 699, 701 (9th Cir. 1990); In Forrester v. White, 484 U.S. 219 (1988) the court held: As a class, judges have long enjoyed a comparatively sweeping form of immunity, though one not perfectly well defined. Judicial immunity apparently originated, in medieval times, as a device for discouraging collateral attacks and thereby helping to establish appellate procedures as the standard system for correcting judicial error. See Block, Stump v. Sparkman and the History of Judicial Immunity, 1980 Duke L. J. 879. More recently, this Court found that judicial immunity was "the settled doctrine of the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country." Bradley v. Fisher, 13 Wall. 335, 347 (1872). Besides protecting the finality of judgments or discouraging inappropriate collateral attacks, the Bradley Court concluded, judicial immunity also protected judicial independence by insulating judges from vexatious actions prosecuted by disgruntled litigants. Id., at 348. If judges were personally liable for erroneous decisions, the resulting avalanche of suits, most of them frivolous but vexatious, would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits, Id., at 660-661. The resulting timidity would be hard to detect or control, and it would manifestly detract from independent and impartial adjudication. Nor are suits against judges the only available means through which litigants can protect themselves from the consequences of judicial error. Most judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability. Id., at 226-227. In Mireles v. Waco, 502 U.S. 9 (1991), the Supreme Court stated: A long line of this Court's precedents acknowledges that, generally, a judge is immune from a suit for money damages. See, e.g., Forrester v. White, 484 U.S. 219 (1988); -10-

Cleavinger v. Saxner, 474 U.S. 193 (1985); Dennis v. Sparks, 449 U.S. 24 (1980); Supreme Court of Va. V. Consumers Union of United States, Inc., 446 U.S. 719 (1980); Butz v. Economou, 438 U.S. 478 (1978); Stump v. Sparkman, 435 U.S. 349 (1978); Pierson v. Ray, 386 U.S. 547 (1967). Although unfairness and injustice to a litigant may result on occasion, "it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself." Bradley v. Fisher, 13 Wall. 335, 347 (1872). Id. at 9-10. The Court also held: Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, judicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial. Pierson v. Ray, 386 U.S., at 554 ("[I]mmunity applies even when the judge is accused of acting maliciously and corruptly"). See also Harlow v. Fitzgerald, 457 U.S. 800, 815-819 (1982) (allegations of malice are insufficient to overcome qualified immunity). Rather, our cases make clear that the immunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Forrester v. White, 484 U.S., at 227229; Stump v. Sparkman, 435 U.S., at 360. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction. Id., at 356357; Bradley v. Fisher, 13 Wall., at 351. Id. at 11-12. In addition: But if only the particular act in question were to be scrutinized, then any mistake of a judge in excess of his authority would become a "nonjudicial" act, because an improper or erroneous act cannot be said to be normally performed by a judge. If judicial immunity means anything, it means that a judge "will not be deprived of immunity because the action he took was in error . . . or was in excess of his authority." Id., at 356. See also Forrester v. White, 484 U.S., at 227 (a judicial act "does not become less judicial by virtue of an allegation of malice or corruption of motive"). Accordingly, as the language in Stump indicates, the relevant inquiry is the "nature" and "function" of the act, not the "act itself." 435 U.S., at 362. In other words, we look to the particular act's relation to a general function normally performed by a judge, . . . . Id. at 12-13. In Dellenbach v. Letsinger, 889 F.2d 755 (7th Cir. 1989), cert. denied, 494 U.S. 1085

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(1990), The Court with respect to jurisdiction over the subject matter, held: The control of a docket is a key function to the proper workings of a court, and although Mr. Dellenback boldly states - without a citation of authority - that Chief Judge Buchanan's status as Chief Judge did not give him authority to act" without some specific designation of jurisdiction," Appellant's Br. at 13, that proposition is not at all self evident. Again if the judge erred in his belief that he had authority to delay the appeal, his error was at most, a "grave procedural error" - not an act undertaken in "the clear absence of all jurisdiction." Id. at 761. With respect to judicial capacity, the Court noted the approach in Stump in analyzing the issue of whether the act is a judicial act: "[T]he factors determining whether an act by a judge is a `judicial' one relate to the nature of the act itself, i.e. whether it is a function normally performed by a judge, and to the expectation of the parties, i.e. whether they dealt with the judge in his judicial capacity." 435 U.S. at 362, 98 S.Ct. at 110. Id. at 761. ... The Court also noted that the Supreme Court had noted that "[c]ourts and judges often act ex parte" 435 U.S. 363 N.12, 98 S.Ct. at 1108 N.2. Furthermore, the Court specifically stated, as recently as its opinion in Forester that "the informal and ex parte nature of a proceeding has not been thought to imply that an act otherwise within a judge's lawful jurisdiction was deprived of its judicial character." 484 U.S. at 227, 108 S.Ct. at 544. Id. at 762. Absolute judicial immunity is also justified because: Suits against federal judges [are not] the only available means through which litigants can protect themselves from the consequence of judicial error. Most judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability. Id. at 762. Clearly, Bernegger's claims against Judge Pepper must be dismissed under the doctrine of absolute judicial immunity.

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Claims Going Forward The claims remaining are all against unnamed "defendants" at the Bolivar County Regional Correctional Facility: (1) exposure to environmental tobacco smoke; (2) failure to respond to grievances; (3) denial of access to legal materials; and (4) denial of access to an attorney. These claims will proceed. Conclusion The following defendants will be dismissed with prejudice from this case because the plaintiff has not alleged any action by these defendants: Michael East, Parker Howard, U. S. Marshal Service, Bureau of Prisons, Jeff Butler, and Sam Moore. The following defendants will be dismissed with prejudice from this case because they enjoy absolute immunity from civil suit: Judge W. Allen Pepper, Jr. and Assistant United States Attorney Robert Mims. The following defendants will be dismissed with prejudice from this case because the plaintiff's allegations against them fail to state a claim upon which relief could be granted: Sherryln Adams and Jennifer Mauney. The following claims against the Bolivar County Regional Correctional Facility defendants (as yet unnamed) will be dismissed for failure to state a claim upon which relief could be granted: forced listening to vulgar movies, forced participation in a conspiracy, failure to protect from harm at the hands of other inmates, denial of access to the telephone, and mail tampering. The following claims will go forward: exposure to environmental tobacco smoke, failure to respond to grievances, denial of access to legal materials, and denial of access to -13-

an attorney. As set forth above, all named defendants have been dismissed from this case. The only defendants remaining are those from the Bolivar County Regional Correctional Facility involved in the claims regarding exposure to environmental tobacco smoke, failure to respond to grievances, denial of access to legal materials, and denial of access to an attorney. The plaintiff must identify the defendants involved in these incidents ­ by name ­ no later than 21 days from the date of this order so that this case may proceed. Should the plaintiff fail to do so, this case will be dismissed without prejudice for failure to prosecute and failure to comply with an order of the court under FED. R. CIV. P. 41(b). A judgment consistent with this memorandum opinion will issue today. SO ORDERED, this the 1st day of June, 2010.

/s/ MICHAEL P. MILLS CHIEF JUDGE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI

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