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White v. Inch

United States District Court, S.D. Illinois

November 28, 2017

WILLIAM A. WHITE, # 13888-084, Plaintiff,
v.
MARK INCH, T. SLOOP, BILL TRUE, and KEVIN MYERS, Defendants.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT UNITED STATES DISTRICT JUDGE.

         Plaintiff, 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.

         Under § 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).

         An 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).

         Applying these standards, the Court finds that some of Plaintiff's claims survive threshold review under § 1915A.

         The Complaint

         Plaintiff 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.

         According 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.

         On 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.

         On 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).

         Plaintiff 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.

         The CMU 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.

         Plaintiff's 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. Fla.)). Id.

         Plaintiff seeks injunctive and declaratory relief as well as monetary damages. (Doc. 1, p. 20).

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

         Based 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 of;
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 ...

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