United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT U.S. DISTRICT JUDGE
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
(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
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.
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
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.
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).
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).
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).
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.
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