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Wagner v. Hoese

United States District Court, S.D. Illinois

April 17, 2014



MICHAEL J. REAGAN, District Judge.

Plaintiff, an inmate in the United States Penitentiary in Marion ("Marion"), brings this action for alleged violations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Plaintiff is serving a 90-month sentence for a drug offense. He claims that Defendants violated his First, Fourth, and Fifth Amendment rights when they confiscated a law book and documents from his cell, subjected him to discipline, and removed him from a drug treatment program. This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A.

The complaint states that Plaintiff's cell, located in the drug treatment unit of Marion, was searched twice on March 14, 2013. Defendant Hoese (drug treatment specialist) shook down the cell in the morning, and Defendant Officer Emery conducted another search in the evening. They removed several items, including a law book titled "Redemption Manual 4.5 Edition - How to be a Secured Party Creditor, " and related forms titled "Waiver of Tort, " and "Notice to Public" (Doc. 1, p. 7). Defendant Hoese charged Plaintiff with a disciplinary infraction for 305-Possession of Anything Unauthorized (Doc. 1, p. 1; Doc. 1-1, p. 6). The first Incident Report states that Defendant Hoese found "a soft covered book that had been altered, " which was the "Redemption Manual" (Doc. 1-1, p. 6). She found it to contain information on "Sovereignty; Basic steps for redemption; [and] UCC Financing Statement Forms" and notes, "This is a well-known book used by sovereign citizens during their filing for universal [sic] commercial code." Id. The second Incident Report records the discovery by Defendant Emery of a four-page document including the title, "Waiver of Tort Notice to Public, " which was identified as a "sovereign citizen contract'" (Doc. 1-1, p. 7). Plaintiff was again charged with a 305-unauthorized possession infraction.

On March 19, 2013, Plaintiff was found guilty of both unauthorized possession charges by Defendants Jarrett (Unit Counselor) and Sheffer, who conducted the disciplinary hearings (Doc. 1, p. 3; Doc. 1-1, pp. 6-7). Plaintiff admitted having the items in his possession, but asserted he had a right to have them. He was punished with phone restrictions of 15 days and 30 days on the respective infractions.

On March 27, 2013, Plaintiff appealed the disciplinary actions, noting that while 18 U.S.C. § 1521 prohibits the filing of false documents against a protected person, the statute does not prohibit the filing of "accurate and legal" documents (Doc. 1-1 p. 9). He had not listed any "covered person" on any of the documents, nor did he possess unauthorized personal information. He asserts First Amendment protection for his right to possess the blank legal forms and the book explaining how the forms should be used correctly. Id. Defendant Walton (Marion Warden) denied Plaintiff's request to expunge the disciplinary reports, based on the staff statements and "policy which dictates that possession of such materials (UCC) are [sic] prohibited" (Doc. 1-1, p. 17). Plaintiff appealed further, and Defendant Laird (BOP Regional Director) responded that Plaintiff was "not allowed to possess or receive" the type of sovereign citizen document found in his cell (Doc. 1-1, p. 12). In Plaintiff's further appeal, he states he had obtained the book through the mail "quite a while ago" after it was ordered for him by a friend (Doc. 1-1, p. 14). He inquired as to whether he would be prohibited from "Petition[ing] the Government to obtain Sovereignty Redemption, should [he] choose" (Doc. 1-1, p. 16). Finally, Plaintiff states that Defendant Watts (BOP National Inmate Appeals Officer) denied his appeal in accordance with the allegedly unconstitutional policy (Doc. 1, p. 3).

In the complaint, Plaintiff asserts that he had the materials in his possession for "scholarly research, " and did not engage in any unlawful activity such as filing a fraudulent claim. Further, he has the right to possess the books and materials "for the purpose of which they were intended" (Doc. 1, p. 7).

Following the discovery of the book and documents in Plaintiff's cell, Defendant Owings (Drug Treatment Program Manager) and Defendant Hoese retaliated against Plaintiff for having this "subversive" anti-government material, by terminating his participation in the drug treatment program (Doc. 1, p. 7). If Plaintiff had completed this program, he would have earned up to one year of "good time" credit against his sentence. Defendant Owings told Plaintiff that "foreign nationals cannot get good time off and neither should sovereign citizens, and that she would ensure that [Plaintiff] would never complete the drug treatment program." Id. Plaintiff's exhibits indicate that he was told he would have to repeat a segment of the program (Phase 1) rather than be advanced to the next phase (Doc. 1-1, pp. 20, 23).

As relief, Plaintiff seeks damages, credit for participation in the drug rehabilitation program as well as the good time credit he would have earned, and injunctive relief to prevent further enforcement of the "non-policy" restricting his possession of the materials (Doc. 1, p. 8).

Merits Review Pursuant to 28 U.S.C. § 1915A

Under § 1915A, the Court is required to conduct a prompt threshold review of the complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from an immune defendant.

Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated the following colorable federal causes of action, which shall receive further review:

Count 1: Defendants Hoese and Emery confiscated Plaintiff's book and documents, and Defendants Jarrett, Sheffer, Walton, Laird, and Watts imposed and enforced disciplinary sanctions[1] upon him and refused to return the items, pursuant to a Marion and/or BOP policy forbidding prisoners from possessing "sovereign citizen" materials, in violation of Plaintiff's First Amendment rights;

Count 2: Defendants Owings and Hoese terminated Plaintiff from the drug treatment (RDAP) program in retaliation for his assertion of his First Amendment right to possess the book and documents.

As to Count 1, the prison policy or practice referenced in the responses to Plaintiff's grievances, which prohibits the possession of "sovereign citizen" documents, indeed imposes a restriction on prisoners' First Amendment rights. Such a policy may be permissible in the prison context, however, if it is reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89-91 (1987). Courts consider four factors in making this "reasonableness" inquiry: (1) whether a rational connection exists between the prison policy regulation and a legitimate governmental interest advanced as its justification; (2) whether inmates have an alternative means of exercising the right; (3) what effect accommodating the exercise of ...

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