Kammeyer. v. True

          MEMORANDUM AND ORDER

          J. PHIL GILBERT United States District Judge

         Plaintiffs James Kammeyer and Phillip Carrier, inmates with the Federal Bureau of Prisons (“BOP”) who are currently incarcerated at the United States Penitentiary located in Marion, Illinois (“USP Marion”), bring this civil rights action alleging violations of their constitutional rights by persons acting under the color of federal authority that occurred in connection with prison restrictions imposed after several incidents involving drug overdoses. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). (Doc. 15). Plaintiffs seek injunctive relief and monetary damages. Before the Court is the First Amended Complaint (Doc. 15), Plaintiff Kammeyer's Motion to Correct the Amended Complaint (Doc. 17), and Motion to take Judicial Notice and to Appoint Counsel (Docs. 18 and 19).

         Procedural Background

         The original Complaint in this case (Doc. 1) was filed by pro se plaintiff James Kammeyer. Following an initial screening of the Complaint pursuant to 28 U.S.C. § 1915A, the Court dismissed the Complaint for failure to state a claim for relief and granted Plaintiff Kammeyer leave to file an amended complaint. (Doc. 14). On July 23, 2019, Plaintiff Kammeyer along with an additional Plaintiff, Phillip Carrier, filed the First Amended Complaint. (Doc. 15). Both Plaintiffs signed the First Amended Complaint, but only Plaintiff Kammeyer paid the filing fee. The Court issued an order advising Plaintiffs of the consequences of bringing claims jointly in a single lawsuit, including their filing fee obligations, and giving Plaintiff Carrier an opportunity to withdraw from the case or sever his claims into an individual action by August 28, 2019. (Doc. 16, p. 5). Plaintiff Kammeyer then filed two identical motions titled Motion to Take Judicial Notice and to Appoint Counsel. (Doc. 18 and 19).

         The First Amended Complaint

         The First Amended Complaint is now before the Court for preliminary review pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to screen prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). Any portion of a 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 must be dismissed. 28 U.S.C. § 1915A(b). At this juncture, the factual allegations of the pro se complaint are to be liberally construed. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

         In the First Amended Complaint, Plaintiffs make the following allegations: Due to several drug overdoses occurring at USP Marion from March 30, 2019, until April 8, 2019, the entire facility was placed on lockdown status. (Doc. 15, p. 11). Additionally, the following sanctions were implemented on the entire inmate population: (1) inmates would be limited to one five-minute phone call and five outgoing emails per day; and (2) the monthly commissary spending limit would be reduced from $360 to $100. (Id.). Inmates were also directed to pack three trash bags with their personal belongings: (1) one for personal property; (2) one for institution-issued clothing; and (3) one for excess personal property, which could be mailed home at the inmate's own expense. (Id. at p. 12). After all inmates packed their bags, USP Marion staff conducted a shakedown of the entire facility. (Id.). During the shakedown, staff threw away excess personal property into trash bins and did not provide information regarding the ability to mail excess property home or provide confiscation forms for any property seized in violation of BOP policy. (Id. at pp. 12-13). Staff also destroyed all microwave ovens in inmate housing units that had been purchased with inmate funds. (Id. at p. 13).

         After the lockdown ended on April 9, 2019, more inmates overdosed and Warden True lowered the monthly commissary spending limit to $75. (Id.).

         During the week of April 8, 2019, Plaintiff Kammeyer witnessed Warden True in the lunchroom become hostile toward inmates trying to speak with him. (Id.). He also heard Warden True tell inmates that “he wanted the drug problem solved ‘however [inmates] have to do it, '… and that if the inmates wanted the mass sanctions lifted, inmates should ‘enforce the rules' against other inmates who were suspected drug users or distributors.” (Id. at p. 14).

         Warden True, Captain Stickles, and S.I.S. Officer Huggins met collectively and individually with the heads of various inmate groups and “instructed them to ‘police [their] own.' If inmates continued overdosing, they said, just drag them into a cell ‘so we don't see it.'” (Id.). Warden True stated that there would not be consequences for anyone who acted, even violently, against drug users. (Id.).

         Because True, Stickles, and Huggins directed inmates to attack one another and encouraged violence, Plaintiff Carrier was assaulted by his cellmate and lost the use of his left eye. (Id. at p. 16). Prior to the attack, he had asked counselor Basler for a new cell assignment, but was ignored. (Id. at pp. 9, 16, 17). He continued to be ignored by Huggins following the attack, when Plaintiff Carrier tried to talk to Huggins and other staff to try and figure out why the attack took place. (Id. at p. 16). Another inmate attacked Plaintiff Carrier again on June 18, 2019, soon after he expressed a desire to become a plaintiff in this lawsuit. (Id. at pp. 9, 16). Plaintiff Carrier was then placed in the Special Housing Unit. (Id. at p. 9).

         True threatened to implement further restrictions and lock down the facility if inmates did not take part in stopping the drug abuse problem. (Id. at p. 18). Inmates, including Plaintiff Kammeyer, attempted to organize a food strike in protest of the restrictions. (Id.). Plaintiff Kammeyer was threatened with retaliation, if he participated, by True, Stickles, Huggins, and Balser and was also threatened with violence by other inmates. (Id.). Ultimately, Plaintiff did not participate. (Id.).

         Preliminary Dismissal

         As an initial matter, the Court dismisses Plaintiff Carrier as a party to this case. Plaintiff Carrier signed the First Amended Complaint, but did not pay the filing fee or file a Motion for Leave to Proceed in forma pauperis (“IFP Motion”). Following the filing of the First Amended Complaint, the Court issued an order directing Plaintiff Carrier to notify the Court by August 28, 2019, if he wished to continue as a plaintiff in this action or pursue his claims individually in a separate lawsuit. (Doc. 16, p. 5). He was warned that that failure to respond to the Court Order by this deadline would result in the obligation to ...