Montgomery v. Crews
| Decision Date | 01 August 2018 |
| Docket Number | Case No. 18-cv-1289-JPG |
| Parties | ROBERT MONTGOMERY, #12868-045, Plaintiff, v. MS. G. CREWS, RIGSBY, ROSALIND ROBINSON, HUSTON, K. SEELY, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, K. WILSON, K. ALLEN, and STONE, Defendants. |
| Court | U.S. District Court — Southern District of Illinois |
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:
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 Owens v. Godinez, 860 F.3d 434, 436 (7th Cir. 2017).See also Wheeler v. Talbot, 695 F. App'x 151 (7th Cir. 2017) (). Consistent with George, Owens, and Wheeler, unrelated claims will be severed into new cases, given new case numbers, and assessed separate filing fees.
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 scoreincreased 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 theremaining 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 Court. The designation of these counts does not constitute an opinion regarding their merit.
As discussed in more detail below, Count 2 will be allowed to proceed past threshold. Any other intended claim that has not been recognized by the Court is considered dismissed without prejudice as inadequately pleaded under the Twombly pleading standard.1
Plaintiff's due process claim appears to be barred under the principles outlined in Preiser v. Rodriguez, 411 U.S. 475 (1973) and Heck v. Humphrey, 512 U.S. 477 (1994). In Preiser, the Supreme Court explained that restoration of good-conduct credits is available only in habeas corpus, not under § 1983, because such a claim would result in "shortening the length of ... actual confinement in prison." Id. at 487. This court cannot "award" Plaintiff any sentence credit. Plaintiff's request for money damages as opposed to injunctive relief does not change the result. A request for damages instead of an injunction does not remove a case from the exclusive domain of habeas corpus. See Heck, 512 U.S. at 486-87, 489 (1994); Whitfield v. Howard, 852 F.3d 656, 661-62 (7th Cir. 2017). "A prisoner seeking money damages for the very fact orduration of his confinement has no claim under § 1983 'unless and until the inmate obtains favorable termination of a state, or federal habeas, challenge to his conviction or sentence.'" Ward v. Akpore, 702 F. App'x 467, 468 (7th Cir. 2017) (citing Nelson v. Campbell, 541 U.S. 637, 646 (2004); Edwards v. Balisok, 520 U.S. 641, 643 (1997)).
Plaintiff's disciplinary hearing resulted in the revocation of good time credit. Thus, based on Heck, before he can bring a claim for money damages for any denial of his constitutional rights at the hearing, Plaintiff must first obtain a favorable termination of this revocation. If this revocation has already been reversed,2 the Court still finds that Plaintiff's allegations fail to state a due process claim upon which relief may be granted.
Prison disciplinary hearings satisfy procedural due process requirements where an inmate is provided: (1) written notice of the charge against the prisoner twenty four (2...
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