United States District Court, S.D. Illinois
WILLIAM A. WHITE, # 13888-084, Plaintiff,
MARK INCH, T. SLOOP, BILL TRUE, and KEVIN MYERS, Defendants.
MEMORANDUM AND ORDER
PHIL GILBERT UNITED STATES DISTRICT JUDGE.
currently incarcerated at the USP-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). He claims
that incoming publications have been improperly withheld from
him and destroyed, and asserts that his ability to
communicate with lawyers and court officials has been
unconstitutionally curtailed or denied. This case is now
before the Court for a preliminary review of the Complaint
pursuant to 28 U.S.C. § 1915A.
§ 1915A, the Court is required to screen prisoner
complaints to filter out non-meritorious claims. See
28 U.S.C. § 1915A(a). The Court must dismiss any portion
of the complaint that is legally frivolous, malicious, fails
to state a claim upon which relief may be granted, or asks
for money damages from a defendant who by law is immune from
such relief. 28 U.S.C. § 1915A(b).
action or claim is frivolous if “it lacks an arguable
basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Frivolousness is an
objective standard that refers to a claim that “no
reasonable person could suppose to have any merit.”
Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir.
2000). An action fails to state a claim upon which relief can
be granted if it does not plead “enough facts to state
a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). The claim of entitlement to relief must cross
“the line between possibility and plausibility.”
Id. at 557. Conversely, a complaint is plausible on
its face “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although the Court is obligated to accept factual allegations
as true, see Smith v. Peters, 631 F.3d 418, 419 (7th
Cir. 2011), some factual allegations may be so sketchy or
implausible that they fail to provide sufficient notice of a
plaintiff's claim. Brooks v. Ross, 578 F.3d 574,
581 (7th Cir. 2009). Additionally, Courts “should not
accept as adequate abstract recitations of the elements of a
cause of action or conclusory legal statements.”
Id. At the same time, however, the factual
allegations of a pro se complaint are to be
liberally construed. See Arnett v. Webster, 658 F.3d
742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 821 (7th Cir. 2009).
these standards, the Court finds that some of Plaintiff's
claims survive threshold review under § 1915A.
names Mark Inch (Director of the Federal Bureau of Prisons -
“BOP”), T. Sloop (Marion Assistant Warden), Bill
True (Marion Warden), and Kevin Myers (BOP Intelligence
Analyst) as Defendants. However, on October 16, 2017,
Plaintiff filed a motion to voluntarily dismiss Myers from
the action, as well as dismiss the claims based on Myers'
conduct. (Doc. 5). That motion shall be granted, therefore,
the summary of Plaintiff's Complaint (Doc. 1) below omits
the content that shall be dismissed.
to the Complaint, on October 16, 2016, Sloop denied Plaintiff
2 identical copies of the publication White Voice.
(Doc. 1, pp. 12; 16). The reason was that the newsletter
contained a photograph of a conflict between an
“Antifa” and “a white person.” (Doc.
1, p. 16; Doc. 1-2, pp. 4-9). Plaintiff invoked his right to
review the publication before it was disposed of, but Sloop
got rid of the material before Plaintiff could see it.
April 4, 2017, True withheld another issue of White
Voice (No. 57). (Doc. 1, pp. 12-13; 17). That material
was denied because it contained an ad promoting a skinhead
group, but Plaintiff asserts the same ad was allowed into the
prison in other publications. (Doc. 1, p. 17; Doc. 1-2, pp.
10-12). Again, Plaintiff was denied his right to review the
material before it was disposed of.
April 20, 2017, True used a “pretextual reason”
to deny Plaintiff a book entitled Talmud Unmasked,
which had been sent to Plaintiff unsolicited. (Doc. 1, pp.
13, 17). True's reason was that the book
“advocate[es] violence, and, murder.” (Doc. 1, p.
17; Doc. 1-2, p. 15). Plaintiff disputes that
characterization of the book. He was not allowed to review it
before it was disposed of. (Doc. 1, p. 17).
raises First Amendment and Due Process claims for the
withholding of his publications. (Doc. 1, p. 12). He takes
issue with BOP Policy Statements governing “special
mail” privileges for inmates in the Communications
Management Unit (“CMU”), where he is housed (PS
5214.02), and the handling of incoming publications (PS
5266.11). He asserts that both regulations as well as 28
C.F.R. §540.203(b) and § 540.71(b) violate the
First Amendment and are void for vagueness. (Doc. 1, p. 12).
He sues Inch, in his official capacity, over the
unconstitutionality of those regulations. (Doc. 1, p. 13).
Plaintiff quotes the regulations on incoming publications,
which state in part, “The Warden may reject a
publication only if it is determined detrimental to the
security, good order, or, discipline, of the institution, or,
if it might facilitate criminal activity.” (Doc. 1, p.
14). The regulation then goes on to give more specific
descriptions of content which would be prohibited.
regulations Plaintiff contests state that “special mail
. . . is limited to privileged communications with the
inmate's attorney.” (Doc. 1, pp. 13-14). Plaintiff
notes that he has been involved in civil litigation and
proceedings under 28 U.S.C. §2255 during the time when
his claims arose. As such, he needed to communicate with the
courts, as well as conduct investigation and contact expert
witnesses. (Doc. 1, p. 15). In June and July 2017, Plaintiff
attempted to communicate “by legal mail” with the
Seventh and Eleventh Circuit Courts of Appeal; the U.S.
District Courts for the Northern District of Illinois,
Western District of Virginia, and Middle District of Florida;
with Dr. Eric Ostrov (a psychological expert and attorney);
and with Rachel Meeropol (attorney with the Center for
Constitutional Rights). (Doc. 1, p. 15). However, Plaintiff
was not permitted to communicate with any of these entities
or persons via confidential legal mail. Id. He also
attempted to communicate via confidential legal mail with
other attorneys, investigators, and experts whom he does not
name, but was not permitted to do so. (Doc. 1, p. 16.
incoming and outgoing legal mail was delayed for as long as 3
months, and he was thus “effectively unable to
communicate with experts, and, investigators.” (Doc. 1,
p. 16). Plaintiff therefore requested counsel to be appointed
for him in Case No. 17-cv-683 pending in this Court, and in a
pending Florida federal case (Case No. 14-cv-936 (M.D.
seeks injunctive and declaratory relief as well as monetary
damages. (Doc. 1, p. 20).
Review Pursuant to 28 U.S.C. § 1915A
on the allegations of the Complaint, the Court finds it
convenient to divide the pro se action into
the following counts. The parties and the Court will use
these designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The
designation of these counts does not constitute an opinion as
to their merit. Any other claim that is mentioned in the
Complaint but not addressed in this Order should be
considered dismissed without prejudice.
Count 1: First Amendment claim against
Sloop, for withholding the White Voice publication
from Plaintiff on October 16, 2016, where the rejection was
not reasonably related to legitimate penological interests;
Count 2: Fifth Amendment due process claim
against Sloop, for disposing of Plaintiff's property (the
White Voice issues) in October 2016, without
allowing Plaintiff to contest the action or review the
publication before it was disposed of;
Count 3: First Amendment claim against True,
for withholding another issue of White Voice from
Plaintiff on April 4, 2017, based on an ad that had been
allowed into the prison in other publications;
Count 4: First Amendment claim against True,
for withholding the Talmud Unmasked book from
Plaintiff on April 20, 2017, where the rejection was not
reasonably related to legitimate penological interests;
Count 5: Fifth Amendment due process claim
against True, for disposing of Plaintiff's property (the
White Voice issue and Talmud Unmasked book)
in April 2017, without allowing Plaintiff to contest the
action or review the publications before they were disposed
Count 6: Claim against Inch in his official
capacity, for maintaining policies that resulted in
publications being withheld from Plaintiff, and caused him to
be unable to engage in confidential communications with