United States District Court, S.D. Illinois
KURT F. JOHNSON, # XXXXX-XXX, Plaintiff,
POSTMASTER GENERAL OF THE UNITED STATES, Defendants.
Johnson, Plaintiff, Pro Se.
MEMORANDUM AND ORDER
J. ROSENSTENGEL, District Judge.
matter is before the Court for case management. Plaintiff,
who is currently incarcerated at the United States
Penitentiary at Marion, Illinois ("Marion"),
brought this pro se action invoking 26 U.S.C. §
7431. He names the Postmaster General in his official
capacity as the sole Defendant (Doc. 1).
of filing a complaint to initiate this action, Plaintiff
filed a self-styled "Notice in Equity as Affidavit,
" which also bore the reference, "26 U.S.C. § 7431
Civil Complaint as Affidavit" (Doc. 1). In this
document, he claimed that unnamed prison employees received
an outgoing registered mail envelope from him, but never
mailed it. The envelope contained Plaintiff's civil suit
under § 7431 against the Postmaster General. In his
"Notice, " Plaintiff requested the Court to contact
the Postal Inspector to come to the prison to
"arrest" Plaintiff's registered mail, to
contact the "Universal Postal Union of Bern Switzerland
which has original jurisdiction of Registered Mail and make
them aware of the crimes, " or to assign a case number
to allow discovery to begin (Doc. 1, p. 2).
"Notice in Equity" was accompanied by a cover
letter asking the Court to "issue a case file number for
the captioned litigation until the suit arrives at the
court" (Doc. 1-1). He also included a copy of his
"Administrative Remedy-Informal Resolution" which
he had submitted on May 4, 2015, to complain about the prison
staff's refusal to deliver his registered mail packages
(Doc. 1, p. 4).
12, 2015, this Court ordered Plaintiff either to file a
complaint to properly initiate the action, or to file a
notice of voluntary dismissal, if he did not intend to
initiate a civil action, no later than June 16, 2015 (Doc.
2). If he chose not to voluntarily dismiss the case,
Plaintiff was further ordered to either pay the $400.00
filing fee for the action or submit a motion for leave to
proceed in forma pauperis (IFP), also by June 16,
2015. The Clerk sent Plaintiff the appropriate forms.
did not file a complaint, nor did he pay the filing fee or
submit a motion for leave to proceed IFP. Instead, on May 26,
2015, he filed a copy of the first page of a four-page
affidavit relating to his complaint under 26 U.S.C. § 7431,
and the first page of an 18-page petition for habeas corpus
relief pursuant to 28 U.S.C. § 2241 (Doc. 3).
days later, on June 4, 2015, the Court received and filed
Plaintiff's "Second Notice in Equity as
Affidavit" (Doc. 4) in response to the Court's order
of May 12, 2015. This document also does not suffice as a
complaint. In it, Plaintiff claimed that it was impossible
for him to comply with the order to file a complaint, because
prison employees had confiscated it on May 8, 2015.
Nonetheless, he said that "shortly thereafter" he
mailed the same civil complaint and § 2241 petition to an
attorney (Doc. 4, p. 2). Prison employees also confiscated
his filing fee, which had been enclosed in the same
"stolen" mail package. Therefore, he did not
complete or return the motion for leave to proceed IFP. He
demanded "equitable tolling" in this action until
some authority could take his complaint from the prison
employees who had "stolen" it and deliver it to the
Court. Alternatively, he requested this Court to issue an
order for Marion officials to allow him to send his complaint
as legal mail to the Court (Doc. 4, pp. 1-2). He specifically
noted that he did not wish to convert this action to a civil
suit brought under Title 42 (as provided on the Court's
standard civil rights complaint form under 42 U.S.C. § 1983)
(Doc. 4, p. 2).
further claimed that as of June 1, 2015, he would have no
access at all to outgoing or incoming mail, and he would not
be able to contact the Court again. He attached copies of
several letters dated May 26, 2015, to the Federal Bureau of
Prisons, the Internal Revenue Service, the Treasury Inspector
General, and the Department of Justice, asking the agencies
to investigate the alleged illegal interference with his mail
or initiate a criminal prosecution of the responsible staff
members of Marion's Communication Management Unit, where
he is housed (Doc. 4, pp. 3-5).
Court has received no further pleadings or other filings from
Plaintiff. Plaintiff has failed to comply with this
Court's order to file a complaint, and he has not sought
to voluntarily dismiss this matter. He likewise has not
complied with the order to pay the filing fee or,
alternatively, to seek leave to pay the filing fee in
installments under the IFP provisions.
"Notices in Equity" state that he wishes to file an
action under 26 U.S.C. § 7431 against the Postmaster General,
but has been prevented by Marion prison officials from
submitting his complaint. If this is true, then Plaintiff
would have an argument that the statute of limitations
governing the filing of that suit should be equitably tolled,
if the suit were filed outside the applicable time limit. If
necessary, he must make that argument at such time as he is
able to file his complaint. In the absence of a complaint,
however, this Court cannot evaluate the merits of
Plaintiff's claims or their timeliness and can take no
further steps to advance his potential suit.
remedy Plaintiff seeks in his "Notices in Equity"
is for this Court to intervene (or direct another agency to
intervene) in the operation of Marion's Communications
Management Unit (CMU), in order to force prison officials to
release Plaintiff's mail. No such action shall be taken
based on the information now before the Court. The Court is
mindful of the heightened restrictions on outgoing
communications from inmates in Marion's CMU. Regardless
of the unit where an inmate is confined, a federal court must
exercise equitable restraint when asked to take over the
administration of a prison. This is something that is best
left to correctional officials and their staff. See
Sandin v. Conner, 515 U.S. 472, 482-83 (1995).
before the Court may even consider granting any injunctive
relief such as Plaintiff requests, a complaint must be filed
against the person or persons directly responsible for the
alleged unconstitutional action, accompanied by an
appropriate motion for injunctive relief. Furthermore, a
preliminary requirement to filing an action against a prison
official is for the prisoner to exhaust his available
administrative remedies through the prison grievance
procedure. 28 U.S.C. § 1997e(a). It is apparent from the
initial grievance request attached to Plaintiff's
"Notice in Equity" (Doc. 1, p. 4) that he had only
just initiated that grievance process with regard to the
registered mail package when he filed his documents with the
Court. It is obvious that he could not have exhausted his
remedies before this case was opened, as they relate to the
allegedly improper actions of the Marion mail employees.
Plaintiff has failed to comply with an order of the Court,
this action is DISMISSED. See FED. R. CIV. P. 41(b).
Ordinarily, a dismissal for failure to comply with a Court
order is a dismissal with prejudice. See generallyLadien v. Astrachan,128 F.3d 1051 (7th Cir. 1997);
Lucien v. Breweur,9 F.3d 26, 29 (7th Cir. 1993)
(dismissal for disobeying a court order is presumptively with
prejudice). In this case, however, because Plaintiff has
asserted that he was prevented by prison officials from
filing his complaint, the dismissal shall be without
prejudice. In the event Plaintiff is able in the future to
submit a proper complaint, he may move for relief from the