Cox v. True

• Decision Date: 18 July 2017
• Docket Number: Case No. 17-cv-0338-JPG
• Parties: FRANCIS SHAEFFER COX, Plaintiff, v. WILLIAM TRUE, KATHERINE SIEREVELD, ANGELA DUNBAR, KATHY HILL, GARY BURGESS, R. BLYTHE, R. BASKERVILLE, C. KRAWCYZK, and FEDERAL BUREAU OF PRISONS Defendants.
• Court: U.S. District Court — Southern District of Illinois

FRANCIS SHAEFFER COX, Plaintiff, v. WILLIAM TRUE, KATHERINE SIEREVELD, ANGELA DUNBAR,KATHY HILL, GARY BURGESS, R. BLYTHE, R. BASKERVILLE,C. KRAWCYZK, and FEDERAL BUREAU OF PRISONS Defendants.

Case No. 17-cv-0338-JPG

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

July 18, 2017

MEMORANDUM AND ORDER

GILBERT, District Judge:

Plaintiff Francis Schaeffer Cox, an inmate in U.S. Penitentiary Marion, brings this action for deprivations of his constitutional rights by persons acting under the color of federal authority pursuant to Bivens v. Six Unknown Agents of the Bureau of Narcotics, 403 U.S. 388 (1971) and the Federal Torts Claims Act, 28 U.S.C. §§ 1346, 2671-2680. Plaintiff requests injunctive relief, declarative relief, as well as nominal, punitive, and compensatory damages. 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).

Upon careful review of the Complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.

The Complaint

Plaintiff is a federal prison inmate serving a 310 month sentence. (Doc. 1, p. 10). His conviction is controversial, and his supporters have conducted mass mailings to raise funds for his legal defense. Id. These mailings have been critical of the Federal Bureau of Prisons ("BOP") and the Defendants. Id. As much as $3 million dollars has been raised by these mailings. Id.

Plaintiff was placed in the Communications Management Unit ("CMU") at Marion in February 2013. Id. Plaintiff was discharged from that unit on February 18, 2016, having gotten 1 incident report during that period. Id.

During the summer of 2016, Plaintiff got into a dispute with some of his supporters over the disbursement of funds raised of his legal defense. (Doc. 1, p. 11). Plaintiff has been involved in legal negotiations with that group of supporters, and has turned to a new group of supporters to assist him in fund-raising. Id.

On June 20, 2016, Joshua Ligairi of Icarus Entertainment contacted Plaintiff about securing the rights to Plaintiff's life story for the purpose of making a documentary. Id. Hill, the Intelligence Research Specialist for Marion, confronted Plaintiff over the correspondence from Ligairi. Id. Hill threatened Plaintiff with new charges if he gave his story to a publisher. Id. She also stated that the Counter-Terrorism Unit ("CTU") would put him back in CMU, and would otherwise be displeased if Plaintiff's story got out. Id. Plaintiff believes that Dunbar, Siereveld, Burgess, Blythe, Baskerville and others are members of the CTU. Id. Ultimately, Plaintiff was deprived of the opportunity to participate in the film, which has since been made. (Doc. 1, p. 12).

On August 9 or 10, 2016¹ Blythe, an intelligence analyst, wrote incident report #2882521 against Plaintiff. Id.; (Doc. 1-1, p. 15). The incident report alleged that Plaintiff had attempted to transfer money to another inmate, Gino-Gabino Andolini through an attorney in Kerrville Texas. (Doc. 1, p. 12). Plaintiff alleges that the letter was forged, but claims that Blythe wrote the ticket in retaliation for the correspondence with Ligairi. Id. Plaintiff further alleges that the retaliation continued when Krawcyzk, acting as a Unit Disciplinary Committee ("UDC"),referred incident report #2882521 to a Disciplinary Hearing Officer despite knowing that it was baseless. Id. Plaintiff alleges the conspiracy continued 2 months later when Hill and Burgess, acting as a UDC found Plaintiff involved in the incident without sufficient evidence. (Doc. 1, p. 13).

On August 30, 2016, Dunbar, the Assistant Regional Director for the BOP North Central Region, placed Cox in the CMU once again without due process. (Doc. 1, pp. 2, 12-13). Plaintiff alleges that Dunbar acted out of a conspiracy against him. (Doc. 1, p. 13).

Plaintiff caught another incident report, #2914557, from Blythe on November 3 or 4th, 2016. Id. That report alleged that Plaintiff used a pre-approved phone call to call into the Wiley Drake radio program. Id.; (Doc. 1-1, p. 16). Plaintiff alleges that the report was without evidentiary basis and in furtherance of the conspiracy. (Doc. 1, p. 13). Hill and Burgess served as the UDC on that report and recommended that it be referred to the Disciplinary Hearing Officer, despite knowing that it was baseless, where it remains pending. Id.

Plaintiff received incident report #2931834 on December 22, 2016. Id.; (Doc. 1-1, p. 17). The report alleged that Plaintiff was operating a business in violation of BOP PS 5270.09 Code 334. (Doc. 1, p. 13). Plaintiff alleges that he was not operating a business, but rather attempting to gain control of funds raised for his legal defense, raise additional funds for his legal defense, and communicate with his supporters. Id. Plaintiff alleges that Siereveld and Blythe wrote the report, despite knowing that it was baseless. Id. On December 28, 2016, Hill and Baskerville, acting as UDC, found the report substantiated, despite knowing that the report was without evidentiary foundation. (Doc. 1, p. 14).

Plaintiff alleges that the retaliation continued from December 22, 2016 through January 9, 2016 when Siereveld, and True began to deny Plaintiff his mail on the theory that the mail waspart of Plaintiff's efforts to conduct a business. (Doc. 1, pp. 13-14). Plaintiff caught another incident report, #2967316 on March 27, 2017 for writing a letter to a supporter requesting that the supporter conduct a fund-raising mailing. (Doc. 1, p. 14). Plaintiff alleges that this disciplinary report was also without evidentiary foundation. Id.

Discussion

Based on the allegations of the Complaint, the Court finds it convenient to divide the pro se action into 15 counts.² These designations supersede Plaintiff's designations. 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 following claims survive threshold review:

Count 1 - The Federal Bureau of Prisons' policy statements on "conducting a business," BOP PS 5265.14 and BOP PS 5270.09 are facially void for vagueness and as-applied to Plaintiff by Defendants True, Siereveld, Dunbar, Hill, Burgess, Blythe, Baskerville, and Krawcyzk;

Count 2 - Defendants Blythe, True, and Siereveld denied Plaintiff his First Amendment rights when they disciplined him and withheld specific items of Plaintiff's mail for allegedly conducting a business between December 22, 2016 and January 9, 2017;

Count 3 - Defendant Hill violated Plaintiff's First Amendment rights when she instructed Plaintiff not to communicate with Ligairi and in fact caused Plaintiff not to communicate further with Ligairi

Count 4 - Defendant Hill retaliated against Plaintiff for attempting to communicate with the media in violation of the First Amendment when she approved discipline against him, as recounted in disciplinary report #2882521, #2914457, and #2931834;

Plaintiff has also attempted to bring other Counts, but for the reasons elucidated below, these claims do not survive threshold review.

Count 5 - Defendants True, Siereveld, Dunbar, Hill, Burgess, Blythe, Baskerville, and Krawcyzk conspired to violate Plaintiff's First and Fifth Amendment rights in violation of 42 U.S.C. § 1985(3) when they retaliated against Plaintiff for receiving a letter from Ligairi;

Count 6 - Defendants Dunbar, True, and Siereveld were negligent in failing to prevent the conspiracy amongst True, Siereveld, Dunbar, Hill, Burgess, Blythe, Baskerville, and Krawcyzk in violation of Plaintiff's First and Fifth Amendment rights pursuant to 42 U.S.C. § 1986;

Count 7 - Defendant Dunbar denied Plaintiff his due process rights under the Fifth Amendment when she transferred him from USP Marion's general population to the Communications Management Unit on August 30, 2016;

Count 8 - Defendant Dunbar retaliated against Plaintiff for the exercise of his First Amendment rights when she transferred him from USP Marion's general population to the Communications Management Unit on August 30, 2016;

Count 9 - Defendant Burgess retaliated against Plaintiff when he substantiated incident reports #2882521 and #2914557 in violation of Plaintiff's First Amendment Rights without sufficient evidence;

Count 10 - Defendant Baskerville retaliated against Plaintiff when he substantiated incident report #2931834 in violation of Plaintiff's First Amendment Rights without sufficient evidence;

Count 11 - Defendant Krawcyzk retaliated against

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