Kyle v. Federal Bureau of Prisons et al

Filing 28

ORDER granting 23 Motion to Dismiss filed by Defendants Nalley and Lappin; Plaintiff's complaint is dismissed as to Defendant Holinka on the court's own motion; denying 27 MOTION for Discovery. Signed by Chief Judge Barbara B. Crabb on 6/26/09. (eds),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------R O D N E Y KYLE, OPINION and ORDER Plaintiff, 0 9 -c v -9 0 -s lc 1 v. C . HOLINKA, Warden; M ICH AEL NALLEY, Regional Director; H AR LEY LAPPIN, F.B.O.P. Director; M A R IO N FEATHER, Assistant Warden; P.D . SHANKS and OFFICER GALLO,2 D efendan ts. --------------------------------------------Plaintiff Rodney Kyle is proceeding on a claim that defendants violated his right to equ al protection by refusing to allow him to share a cell with another prisoner on the basis of race. Two of the defendants, Michael Nalley and Harley Lappin, have filed a motion to dism iss under Fed. R. Civ. P. 12(b)(6) on the ground that plaintiff's allegations do not meet

Because consents to the magistrate judge's jurisdiction have not yet been filed by all the parties to this action, I am assuming jurisdiction over the case for the purpose of this o r d er . In his complaint, plaintiff identified Michael Nalley and Harley Lappin as "Mr. N alley" and "H. Lappin." I have amended the caption to reflect their full names as identified by defendants. 1
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the pleading requirements under Fed. R. Civ. P. 8, as set forth in Ashcroft v. Iqbal, 129 S. C t. 1937 (2009), a case decided after I screened plaintiff's complaint under 28 U.S.C. § 1 9 1 5. In his amended complaint, dkt. #18, plaintiff alleged that when he first arrived at the federal prison in Oxford, he received a cell assignment with a white prisoner. However, d efen dan t Gallo told him "it was a problem" because plaintiff is black and "inmates of different races couldn't live together." When plaintiff talked to defendant Shanks (the unit m an ager), he said, "This is the way we do it here." Next, plaintiff went to defendant Feather (the assistant warden), who told plaintiff that she was "aware of it being practiced" at the prison but that it was "self imposed" by the prisoners. When plaintiff told her that

segregatio n is illegal, she said that "she knows," but that plaintiff "would have a hard time pro ving it." W ith respect to defendants Holinka (the warden), Nalley (the regional director) and Lappin (the director of the Federal Bureau of Prisons), plaintiff alleged that they are "aware an d in control of the segregated environ[m]ents" and they "allow this practice to be carried ou t in the living qua[r]ters and chow halls of the prison or prison[s] under their control." In a supplement to his complaint, dkt. #9, he wrote that he was "challenging the unwritten po licy of segregation" imposed by defendants. In addition, he wrote that he believes "lower staff would follow orders from their superiors." 2

In the order in which I allowed plaintiff to proceed against Nalley and Lappin, dkt. # 10, I construed his allegations against them liberally to mean that they were responsible fo r a racially discriminatory policy that led to the decision to deny plaintiff's cell assignment request. I noted that plaintiff would have an uphill battle proving his claim against the h igh er ranking officials and that his complaint "leaves out many facts regarding the basis for h i s belief that there is a national policy of segregation in the federal prisons." However, I noted that he was not required to plead detailed facts under Fed. R. Civ. P. 8, Walker v. B enjam in, 293 F.3d 1030, 1039 (7th Cir. 2002), and that I was required to accept all of his allegatio n s as true. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) I agree with defendants that my conclusion must be revisited in light of Iqbal, which exten ded the pleading standard enunciated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (20 07 ), to encompass discrimination claims and implicitly overturned decades of circuit preceden t in which the court of appeals had allowed discrimination claims to be pleaded in a conclusory fashion. E.g., Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998)

(allegatio n that "I was turned down a job because of my race" is enough to state claim for d iscrim i n a t i o n ); EEOC v. Concentra Health Services, Inc., 496 F.3d 773 (7th Cir. 2007) (co ncluding that standard under Bennett survived Bell Atlantic). Under the Supreme

C o u rt's new standard, an allegation of discrimination needs to be more specific. Iqbal, 129 S . Ct. at 1951 (refusing to accept as too conclusory allegation that defendants "knew of, 3

co n do n ed , and willfully and maliciously agreed to subject [him]" to harsh conditions of confinem ent "as a matter of policy, solely on account of [his] religion, race, and/or national o rigin and for no legitimate penological interest"). It must provide enough detail to show that the claim is "plausible on its face," which the Court defined to mean that the plaintiff has provided enough "factual content that allows the court to draw the reasonable inference th at the defendant is liable for the misconduct alleged." Id. at 1949. Plain tiff's allegations in this complaint are even sparser than those at issue in Iqbal. H e does not allege any facts supporting a view that Nalley and Lappin acted with d iscrim in ato ry intent; his allegation that defendants Nalley and Lappin have a policy of segregatio n is a "naked assertio[n] devoid of further factual enhancement." Id. at 1949. Am. Cpt., dkt #18. In fact, in his supplement, he acknowledges that his allegation is an

"assum ption ." Under Iqbal, assumptions are not enough to state a claim upon which relief m ay be granted. Accordingly, plaintiff's complaint must be dismissed as to defendants N alley and Lappin. The same result is required with respect to defendant Holinka. As with Nalley and Lappin, plaintiff fails to allege any facts showing that Holinka has implemented a discrim inatory policy. Although defendant Holinka did not file a motion to dismiss, I have an independent obligation under § 1915 to determine whether plaintiff's allegations state a claim upon which relief may be granted. See also Judson Atkinson Candies, Inc. v. 4

Latini-H ohberger Dhimantec, 529 F.3d 371, 384-85 (7th Cir. 2008) ("If a district court grants one defendant's motion for summary judgment, it may sua sponte enter summary judgm ent in favor of non-moving defendants if granting the motion would bar the claim against those non-moving defendants.") Plaintiff says that dismissal of the higher-ranking officials "will demolish the com plaint as a whole because it is [his] belief the other defendants were following orders from Nalley and Lappin." Plt.'s Br., dkt. #24. Plaintiff is wrong on two counts. First, even if lower ranking officials were implementing a policy, this does not necessarily mean they cou ld not be held liable. Generally, there is no "just following orders" defense in cases bro ught under 42 U.S.C. § 1983. Cherry v. Berge, Nos. 02-C-544-C and 02-C-394-C (W.D. W is. June 26, 2003) (citing Gonzales v. Cecil County, Maryland, 221 F.Supp.2d 611, 617 (D . Md.2002)); see also O'Rourke v. Hayes, 378 F.3d 1201, 1210, n. 5 (11th Cir.2004) ("since World War II, the `just following orders' defense has not occupied a respected po sition in our jurisprudence and officers in such cases may be held liable under § 1983 if th ere is a reason why any of them should question the validity of that order") (citation and punctuation omitted); Shidler v. Moore, 409 F. Supp. 2d 1060 (N.D. Ind. 2006). Second, if the discovery process reveals evidence that Nalley, Lappin and Holinka are responsible for discrim inatory treatment against plaintiff, he may seek leave to amend his complaint at that tim e to include them as defendants again. 5

I must deny plaintiff's "Motion for Discovery to Prove Defendants H. Lappin and N alley Implemented Segregated Policies," in which he asks the court to stay a ruling on defendan ts' motion until he has the opportunity to engage in discovery. Although plaintiff is free to engage in discovery to determine whether defendants Gallo and Shanks were follow ing a discriminatory policy, he cannot delay a ruling on defendants' motion to dismiss durin g that process. Again, plaintiff may amend his complaint if the discovery process pro vides support for his beliefs. Fina lly, defendants point out that service of process in this case did not comply with Fed. R. Civ. P. 4(i)(3), which requires the complaint to be served on the United States w henever a federal employee is sued in his individual capacity. To correct this deficiency, I am sending a copy of the summons and complaint via certified mail to the U.S. Attorney G eneral and the U.S. Attorney for the Western District of Wisconsin in accordance with R ule 4(i).

OR DER IT IS ORDERED that 1. The motion to dismiss, dkt. #23, filed by defendants Michael Nalley and Harley L app in is GRANTED. Plaintiff Rodney Kyle's complaint is DISMISSED as to these

defendants without prejudice to plaintiff's filing an amended complaint if discovery reveals 6

a basis for his claim against them. 2. On the court's own motion, plaintiff's complaint is DISMISSED as to defendant C a r ol Holinka without prejudice to plaintiff's filing an amended complaint if discovery reveals a basis to his claim against her. 3. Plaintiff's "Motion for Discovery," dkt. #27, is DENIED. 4. A copy of the summons and complaint is being sent via certified mail to the

U .S. Attorney General and the U.S. Attorney for the Western District of Wisconsin. Entered this 26t h day of June, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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