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Montgomery v. Crews

United States District Court, S.D. Illinois

August 1, 2018

ROBERT MONTGOMERY, #12868-045, Plaintiff,



         Plaintiff Robert Montgomery, an inmate in the Federal Correctional Institution in Yazoo City, brings this action for violations of his constitutional rights by persons acting under the color of federal authority that allegedly occurred at the Federal Correctional Institution in Greenville, Illinois and the United States Penitentiary in Florence, Colorado. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). In his Complaint, Plaintiff claims the defendants have violated his Fifth Amendment due process rights and First Amendment right to be free from retaliation. (Doc. 1). This case is now before the Court for a preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A, which provides:

(a) Screening - The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal - On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.

         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 any reasonable person would find meritless. 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. At this juncture, the factual allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

         As a part of screening, the Court is also allowed to sever unrelated claims against different defendants into separate lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). In George, the Seventh Circuit emphasized that the practice of severance is important, “not only to prevent the sort of morass” produced by multi-claim, multi-defendant suits “but also to ensure that prisoners pay the required filing fees” under the Prison Litigation Reform Act. Id. This practice is encouraged. The Seventh Circuit Court of Appeals has recently warned district courts not to allow inmates “to flout the rules for joining claims and defendants, see Fed. R. Civ. P. 18, 20, or to circumvent the Prison Litigation Reform Act's fee requirements by combining multiple lawsuits into a single complaint.” Owens v. Godinez, 860 F.3d 434, 436 (7th Cir. 2017). See also Wheeler v. Talbot, 695 Fed.Appx. 151 (7th Cir. 2017) (district court should have severed unrelated and improperly joined claims or dismissed one of them). Consistent with George, Owens, and Wheeler, unrelated claims will be severed into new cases, given new case numbers, and assessed separate filing fees.

         The Complaint

         In his Complaint (Doc. 1), Plaintiff makes the following allegations: on September 6, 2016, a dark paper-like substance was discovered in Plaintiff's cell by C.O. Burggraf. (Doc. 1, p. 7); (Doc. 1-1, p. 10). Lieutenant Phillips conducted an institutional N.I.K. Testing Kit that “displayed a presumptive positive for methamphetamine.” (Doc. 1-1, p. 10). Plaintiff and his cellmate were both ordered to submit a urine analysis. (Doc. 1, p. 7). Plaintiff repeatedly requested laboratory testing of the substance he was accused of possessing. Id.

         On September 8, 2016, Defendant Seely “served Plaintiff with a SHOT for violation of institutional code #111-Introduction of Drugs/Alcohol.” (Doc. 1-1, p. 11). On September 20, 2016, Plaintiff got a revised SHOT from Seely charging him with the lesser violation of “#113-Possession of any Narcotics, Marijuana, Drugs, Alcohol, etc.” (Doc. 1-1, p. 12). On that date, Seely advised Plaintiff of his rights. Id. On October 5, 2016, Plaintiff was taken before Defendant Crews. Id. He asked about laboratory testing of the substance, but Crews told Plaintiff that none would be ordered because the case was not being referred for prosecution. Id. Crews also admonished Plaintiff for interrupting the proceedings. Id. Crews found Plaintiff guilty of Possession of Drugs/Alcohol. (Doc. 1-1, p. 13). Among other things, 41 days of Plaintiff's good time credit was taken, and his security level was increased. (Doc. 1, p. 7).

         Around October 11, 2016, Plaintiff attempted to speak with Defendant Huston about his “Inmate Classification Scoring.” (Doc. 1-1, p. 13). Plaintiff was concerned that his score increased by two points, from 21 to 23, since his arrival at Greenville. Id. Huston became hostile toward Plaintiff and ended the conversation. (Doc. 1-1, p. 14). Plaintiff also wrote a letter to Defendant Rigsby about his score, but Rigsby failed to respond. Id. While he was in SHU from September 6, 2016 to November 14, 2016, Plaintiff also tried to correct his score through conversations with Defendant Robinson. Id. Defendants Crews, Robinson, Rigsby, Huston, and Seely prepared transfer documents for Plaintiff and increased his security level to retaliate against him “for exercising his Fifth Amendment right to due process.” (Doc. 1-1, p. 15). On or about November 14, 2016, Plaintiff was transferred to a high security institution, USP Florence in Colorado. (Doc. 1-1, p. 16).

         Plaintiff makes several other claims regarding violations of his constitutional rights at USP Florence against John Does 1, 2, and 3, Wilson, Allen, and Stone. (Doc. 1, p. 7); (Doc 1-1, pp. 7-9, 16-22). Plaintiff requests monetary damages from the defendants. (Doc. 1, p. 8).


         The Court will begin its discussion of Plaintiff's claims by addressing the need for severance. Plaintiff's claims against John Does 1, 2, and 3, Wilson, Allen, and Stone stem from events that took place in USP Florence and are unrelated to the other claims in this action. Consistent with George and Federal Rules of Civil Procedure 18 and 20, the Court shall sever Plaintiff's claims stemming from USP Florence against John Does 1, 2, and 3, Wilson, Allen, and Stone into a separate action, and shall open a new case with a newly-assigned case number for them. A separate merits review shall be conducted in the severed case after it is opened and assigned to a judge. Plaintiff shall be assessed a new filing fee for the severed case.


         Based on the allegations of the Complaint, the Court finds it convenient to divide the remaining claims of this pro se action into 2 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 ...

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