PASSMORE v. INDIANA DEPARTMENT OF CORRECTIONS

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

MICHAEL PASSMORE, )

)

Plaintiff, )

)

v. ) No. 2:23-cv-00224-JPH-MJD

)

INDIANA DEPARTMENT OF )

CORRECTIONS,

ZATECKY PCF Warden, )

J. MCCLAIN PCF Mailroom Supervisor, )

EVENS PCF Supervisor Internal Affair, )

SMITH IA lead investigator, )

)

Defendants. )

Order Screening Complaint and Directing Further Proceedings

Plaintiff Michael Passmore is a prisoner currently incarcerated at

Putnamville Correctional Facility ("Putnamville"). He filed this civil rights action

alleging a variety of constitutional and state law claims based on the confiscation

of publications he had ordered. Because Mr. Passmore is incarcerated, the Court

must screen his complaint before serving the defendants. 28 U.S.C. § 1915A.

I. Screening Standard

When screening a complaint, the Court must dismiss any portion that is

frivolous or malicious, fails to state a claim for relief, or seeks monetary relief

against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). To

determine whether the complaint states a claim, the Court applies the same

standard as when addressing a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6). See Schillinger v. Kiley, 954 F.3d 990, 993 (7th Cir. 2020).

Under that standard, a complaint must include "enough facts to state a claim to

relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). "A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The

Court construes pro se complaints liberally and holds them to a "less stringent

standard than formal pleadings drafted by lawyers." Cesal v. Moats, 851 F.3d

714, 720 (7th Cir. 2017).

II. The Complaint

The complaint names five defendants: (1) Indiana Department of

Correction ("IDOC"); (2) Putnamville Warden Dushan Zatecky; (3) mailroom

supervisor J. McClain; (4) Internal Affairs Supervisor Evans; and (5) Internal

Affairs Lead Investigator J.R. Smith. Mr. Passmore seeks damages and injunctive

relief.

Mr. Passmore alleges that the defendants wrongfully confiscated

several books and publications in violation of his First Amendment rights. He

alleges that he has subscribed to "the very mild history magazine The Barnes

Review since 1997" and has received those magazines and other publications

from The Barnes Review's publisher, TBR, without incident until mailroom clerk

J. McClain and Mr. Evans confiscated the magazine and two books in June

2021. Dkt. 2 at 4, 7. According to the grievances attached as an exhibit to the

complaint, the books, Red Republicans and Lincoln's Marxists: Marxism in the

Civil War and The War Against Whites: The Racial Psychology Behind the Anti-

White Hatred Sweeping the West were confiscated on the basis that they

contained racial slurs and Security Threat Group material and because they

violate the safety and security of staff and the facility. Dkt. 2-2 at 14, 17. With

respect to The Barnes Review, Warden Zatecky told Mr. Passmore, "The magazine

content poses a threat to the security of the facility. It falls in line with ideas

associated with white supremacy and is considered an antisemitic organization.

This issue falls within the Security Threat Group umbrella and the magazine will

not be allowed into the facility." Dkt. 2-2 at 21.

Mr. Passmore disputes that the materials were actually inspected and

states that the books do not promote violence or contain racial slurs. He also

states that he successfully received Red Republicans and Lincoln's Marxists:

Marxism in the Civil War from a different source and has since received

publications from TBR, demonstrating that the prison's application of its policies

is arbitrary.

Mr. Passmore believes that the confiscations occurred out of retaliation for

filing grievances and lawsuits. Mr. Passmore alleges that McClain was upset that

Mr. Passmore had filed a grievance against McClain for confiscating a Celtic

cross and received relief. He also believes that McClain inflates the prices of

outgoing mail because the cost of postage to receive the books was only $5.00,

but it cost him $15.00 to mail them back out. He also believes that the Internal

Affairs staff retaliated against him because a defendant in one of his pending

lawsuits is now an investigator in that department. With respect to Warden

Zatecky, he alleges that the warden agrees with grievance responses without

investigating the underlying facts.

Mr. Passmore denies that he is a white supremacist. He says he is a

"Messianic/Judaic Christian and should not be persecuted because of it." Dkt. 2

at 10. He also alleges that he is being discriminated against because books about

white people and white culture are banned, while books targeted to people of

color are allowed.

Mr. Passmore believes that his rights under the First and Fourteenth

Amendment have been violated. He brings the following claims: (1) Monell claims

against the IDOC; (2) First Amendment religious discrimination and free speech

claims against all defendants; (3) First Amendment retaliation claim against all

individual defendants; (4) negligent training and failure to supervise claims

against all individual defendants; (5) negligence claims against all defendants;

(6) Fourteenth Amendment equal protection claims against all individual

defendants; and (7) civil conspiracy claims against all individual defendants.

III. Discussion of Claims

Applying the screening standard to the factual allegations in the amended

complaint, some claims shall proceed while others shall be dismissed for failure

to state a claim upon which relief can be granted.

Claim One: Monell Claims

Mr. Passmore's policy-or-practice claims under Monell v. Dep't of Soc.

Servs., 436 U.S. 658, 690−91 (1978), must be dismissed for failure to state a

claim. Monell permits suits against municipalities or private corporations acting

in the place of the state if their policy, practice, or custom caused a constitutional

violation. But individuals cannot sue state agencies like the IDOC under Monell

due to the Eleventh Amendment to the United States Constitution and the

doctrine of sovereign immunity. Will v. Michigan Dept. of State Police, 491 U.S.

58, 70−71 (1989) (holding "that neither a State nor its officials acting in their

official capacities are 'persons' under § 1983" and distinguishing Monell because

"States are protected by the Eleventh Amendment while municipalities are not");

Kentucky v. Graham, 473 U.S. 159, 165−67 and n.14 (1985) (suit for damages

against state officer in official capacity is barred by the Eleventh Amendment).

Because the Eleventh Amendment prevents a lawsuit for damages against

the IDOC, all claims against the IDOC for damages are dismissed and will not

be discussed further.

Claim Two: First Amendment Religious Discrimination and Free

Speech Claims

"The First Amendment right to free speech also includes the right to read."

White v. Sloop, 772 F. App'x 334, 336 (7th Cir. 2019) (citing Miller v. Downey,

915 F.3d 460, 463 (7th Cir. 2019)). But prison officials "have 'great latitude' to

restrict that right so long as the limitations reasonably relate to legitimate

penological interests.'" Id. (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).

In White, 772 F. App'x at 336, the Seventh Circuit upheld dismissal of a

case at screening in which the plaintiff sought to receive mail containing white

supremacist ideology. There, the confiscated mail "featured the ideology of

skinheads, a white supremacist group that embraces violence and the threat of

violence as a method of advancing their views." Id. (cleaned up). Here, the warden

approved the confiscation of The Barnes Review because it espoused antisemitic

and white supremacy viewpoints. Dkt. 2-2 at 21. Other books were disallowed

because they contained racial slurs and could affect prison security. Mr.

Passmore disputes, however, that the magazine and other books published by

TBR promote violence or otherwise pose a threat to security. Thus, at this

juncture, the Court will allow Mr. Passmore's First Amendment free speech

claims to proceed against defendants McClain, Smith, Evans, and Zatecky. To

the extent Mr. Passmore seeks injunctive relief, an official capacity claim shall

also proceed against Warden Zatecky since "he would be responsible for

ensuring that any injunctive relief is carried out." Gonzalez v. Feinerman, 663

F.3d 311, 315 (7th Cir. 2011).

Any claims related to Mr. Passmore's ability to practice his religion are

dismissed for failure to state a claim. "[A] substantial burden on the free

exercise of religion . . . is one that forces adherents of a religion to refrain from

religiously motivated conduct, inhibits or constrains conduct or expression that

manifests a central tenet of a person's religious beliefs, or compels conduct or

expression that is contrary to those beliefs." Koger v. Bryan, 523 F.3d 789, 798

(7th Cir. 2008). Mr. Passmore does not include any allegations from which one

can infer that confiscation of a book about communism in the Civil War, a book

about racial psychology, or a history magazine affects his ability to practice his

"Messianic/Judaic Christian" beliefs.

Claim 3: First Amendment Retaliation

To state a retaliation claim, a plaintiff must allege that (1) he engaged in

protected First Amendment activity; (2) he suffered a deprivation that would

likely deter future First Amendment activity; and (3) the protected activity was a

motivating factor in Defendants' decision to take the allegedly retaliatory action.

Taylor v. Van Lanen, 27 F.4th 1280, 1284 (7th Cir. 2022).

Retaliation claims shall proceed against defendants McClain, Evans, and

Smith on the basis that Mr. Passmore alleges that they disapproved his books

because of his litigation and grievance activities. But any retaliation claim

against Warden Zatecky is dismissed. "Individual liability under § 1983 …

requires personal involvement in the alleged constitutional deprivation." Colbert

v.City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017) (internal quotation omitted).

Mr. Passmore includes no factual allegations from which the Court could infer

that Warden Zatecky was motivated by Mr. Passmore's protected activity when

he denied the grievances.

Claim 4: Negligent Training/Failure to Supervise

Mr. Passmore alleges that the defendants who were supervisors failed to

"hold their employees accountable for their misconduct." Dkt. 2 at 23.

"Liability under § 1983 is direct rather than vicarious; supervisors are

responsible for their own acts but not for those of subordinates, or for failing to

ensure that subordinates carry out their tasks correctly." Horshaw v. Casper,

910 F.3d 1027, 1029 (7th Cir. 2018). Further, failure to train claims cannot be

maintained against individual defendants but instead are generally brought

against municipalities under Monell. Brown v. Budz, 398 F.3d 904, 918 (7th Cir.

2005) ("[F]ailure to train claims are usually maintained against municipalities,

not against individuals, and, in the Eighth Amendment context, such claims may

only be maintained against a municipality.") (citation omitted).

The Court has permitted First Amendment free speech and retaliation

claims against the individual defendants based on their own conduct. Any

failure-to-train or failure-to-supervise claims are dismissed because they are not

cognizable against these defendants.

Claim 5: Negligence

Mr. Passmore asserts a negligence claim against the defendants.

"A plaintiff seeking damages for negligence must establish (1) a duty owed to the

plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately

caused by the breach of duty." Pfenning v. Lineman, 947 N.E.2d 392, 398

(Ind. 2011). A state law negligence claim can proceed against an individual state

employee only if the plaintiff alleges "that an act or omission of the employee that

causes a loss is (1) criminal; (2) clearly outside the scope of the employee's

employment; (3) malicious; (4) willful and wanton; or (5) calculated to benefit the

employee personally." Ind. Code § 34-13-3-5(c)(1)). Negligence claims shall

proceed against defendants McClain, Evans, and Smith on the basis that Mr.

Passmore alleges that they disapproved his books for retaliatory reasons, which

could be considered malicious, and, in McClain's case, that he/she inflated the

cost of postage. Because there are no allegations that could support a finding

that his decision-making was malicious, willful, or wanton, or calculated to

benefit him, negligence claims against Warden Zatecky are dismissed.

Claim 6: Fourteenth Amendment Equal Protection

Mr. Passmore's equal protection claim shall proceed against the

individual defendants on the theory that they confiscated publications about

white culture or beliefs but permitted publications about other cultures.

Claim 7: Civil Conspiracy

In Mr. Passmore's final claim, he asserts a conspiracy claim under

42 U.S.C. § 1985(3), alleging that the defendants conspired to deprive him of his

constitutional rights. "The function of § 1985(3) is to permit recovery from a

private actor who has conspired with state actors." Fairley v. Andrews, 578 F.3d

518, 526 (7th Cir. 2009). Here, all individual defendants are employees of the

IDOC and therefore state actors, "so a § 1985(3) claim does not add anything

except needless complexity." Id. It is therefore dismissed.

V. Summary

The only viable claims are First Amendment free speech claims and

Fourteenth Amendment equal protection claims against defendants Zatecky,

McClain, Evans, and Smith, and First Amendment retaliation and negligence

claims against defendants McClain, Evans, and Smith. All other claims have

been dismissed. If Mr. Passmore believes that additional claims were alleged in

the complaint, but not identified by the Court, he shall have through

September 14, 2023, in which to identify those claims.

The clerk is directed to terminate Indiana Department of Correction,

and to update the name of defendant "Evens"1 to "Evans" and defendant

"Smith" to "J.R. Smith."

IV. Request for a Temporary Restraining Order and Transfer

In Mr. Passmore's complaint, he requests "preliminary injunction relief in

the form of a temporary restraining order against all [defendants] to keep them

from further damages and retaliation" and "transfer to another IDOC facility to

be free from further damages." Dkt. 2 at 30.

"A preliminary injunction is an extraordinary equitable remedy that is

available only when the movant shows clear need." Turnell v. Centimark Corp.,

796 F.3d 656, 661 (7th Cir. 2015). To obtain a preliminary injunction a plaintiff

first must show that: "(1) without this relief, [he] will suffer irreparable harm;

(2) traditional legal remedies would be inadequate; and (3) [he] has some

likelihood of prevailing on the merits of [his] claims." Speech First, Inc. v. Killen,

968 F.3d 628, 637 (7th Cir. 2020). Here, Mr. Passmore has not alleged he would

suffer irreparable harm absent an injunction or temporary restraining order.

Mr. Passmore has obtained at least one of the books at issue in his complaint

and other reading materials. Thus, he has not shown that the Court must take

the extraordinary step of ordering his transfer to another prison or any other

injunctive relief. If Mr. Passmore believes that a preliminary injunction is

1 Mr. Passmore spelled this defendant's surname as "Evens" in the caption but

as "Evans" through the rest of the complaint.

necessary, he must file a separate motion and provide a factual basis in support

of the three threshold requirements necessary for preliminary injunctive relief.

V. Service of Process

The clerk is directed pursuant to Fed. R. Civ. P. 4(c)(3) to issue process

to defendants Warden Dushan Zatecky, M. McClain, Evans, and Smith in the

manner specified by Rule 4(d). Process shall consist of the complaint, dkt [2],

exhibits, dkt. [2-2], applicable forms (Notice of Lawsuit and Request for Waiver

of Service of Summons and Waiver of Service of Summons), and this Order.

The clerk is directed to serve the Indiana Department of Correction

employees electronically.

Nothing in this Order prohibits the filing of a proper motion pursuant to

Rule 12 of the Federal Rules of Civil Procedure.

SO ORDERED.

Date: 8/17/2023

Sjamu Patrick hawlove

Distribution: James Patrick Hanlon

, United States District Judge

MICHAEL PASSMORE Southern District of Indiana

962822

PUTNAMVILLE - CF

PUTNAMVILLE CORRECTIONAL FACILITY

Electronic Service Participant — Court Only

Electronic service to Indiana Department of Correction:

Warden Dushan Zatecky

Mailroom Supervisor J. McClain

Internal Affair Supervisor Evans

Lead Investigator J.R. Smith

(All at Putnamville Correctional Facility)

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