UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JAMES E. MANLEY, )

)

Plaintiff, )

) Case No. 3:13-CV-1308 JD

v. )

)

INDIANA DEPARTMENT OF CORRECTION, )

)

Defendant. )

OPINION AND ORDER

James E. Manley, a pro se prisoner, initiated this case by filing a document captioned,

“Petition for Emergency Restraining Order and Order Transferring Custody of Plaintiff to the

Federal Bureau of Prisons” (DE 1 at 1) in which the “Plaintiff pray[s] this Court grant this Petition

under 18 U.S.C. § 1514, restraining the Indiana Department of Correction, its staff, contractors, and

confined offenders from harassing, intimidating, and otherwise retaliating against Plaintiff and order

the Plaintiff be immediately transferred to the Federal Bureau of Prisons for protective custody and

for all other relief just and proper.” Id. at 3-4. 

Though it is not possible to grant relief pursuant to 18 U.S.C. § 1514 because this petition

was not filed by “the attorney for the Government” as required by that statute, the court will consider

whether there is any other basis for relief because “[a] document filed pro se is to be liberally

construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(quotation marks and citations omitted). “In order to state a claim under § 1983 a plaintiff must

allege: (1) that defendants deprived him of a federal constitutional right; and (2) that the defendants

acted under color of state law.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). 

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Manley is suing the Indiana Department of Correction, an agency of the State of Indiana. The

Eleventh Amendment generally precludes a citizen from suing a State or one of its agencies or

departments in federal court. Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001). There are three

exceptions to Eleventh Amendment immunity: (1) suits directly against the State based on a cause

of action where Congress has abrogated the state’s immunity from suit; (2) suits directly against the

State if the State waived its sovereign immunity; and (3) suits against a State official seeking

prospective equitable relief for ongoing violations of federal law. MCI Telecommunications Corp.

v. Ill. Commerce Comm’n, 183 F.3d 558, 563 (7th Cir. 1999). Here the first two exceptions do not

apply because Congress did not abrogate the States’ immunity through the enactment of Section

1983, Joseph v. Bd. of Regents of Univ. of Wis. Sys., 432 F.3d 746, 748 (7th Cir. 2005), and Indiana

has not consented to this lawsuit. 

The third exception applies only in a suit against a state official named in his individual

capacity. Va. Office for Prot. & Advocacy v. Stewart, 563 US __, __; 131 S. Ct. 1632, 1638; 179 L.

Ed. 2d 675, 686 (2011) (A state official who comes into conflict with the Constitution is subjected

in his person to the consequences of his individual conduct. The State has no power to impart to him

any immunity from responsibility to the supreme authority of the United States.) However, the only

named defendant in this case – the Indiana Department of Correction – is not a state official.

Nevertheless, because he is proceeding pro se, the court will construe this as a case against

Commissioner Bruce Lemmon in his individual capacity. 

In addition, before finding that the third exception applies, the court must “conduct a

straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and

seeks relief properly characterized as prospective.” McDonough Assocs., Inc. v. Grunloh, 722 F.3d

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1043 (7th Cir. 2013) (quotation marks, brackets, and citations omitted). Here, the petition alleges

that Manley is being retaliated against “for the exercise of his First Amendment right to petition the

government for redress of grievances and for reporting Federal criminal offenses to Federal law

enforcement officers and agencies . . ..” DE 1 at 1. 

To prevail on his First Amendment retaliation claim, Gomez must show that

(1) he engaged in activity protected by the First Amendment; (2) he suffered a

deprivation that would likely deter First Amendment activity in the future; and (3)

the First Amendment activity was at least a motivating factor in the Defendants’

decision to take the retaliatory action.

Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012) (quotation marks and citations omitted). Manley

states that he has reported multiple crimes to federal authorities and filed two lawsuits against prison

staff. He states that he was attacked on November 25, 2013, by an unknown fellow inmate. He

alleges that inmate is a white supremacist gang member who conspired with Commissioner Bruce

Lemmon and other prison officials to retaliate against him for exercising his First Amendment

rights. He alleges that he is in fear of future attacks, but has been denied protective custody. Manley

has met the first two prongs of the retaliation test because “[a] prisoner has a First Amendment right

to make grievances about conditions of confinement” Watkins v. Kasper, 599 F.3d 791, 798 (7th Cir.

2010), and being attacked is a deprivation that would likely deter future First Amendment activity.

The third prong, however, is a much more tenuous matter.

A complaint must contain sufficient factual matter to “state a claim that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility

when the pleaded factual content 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) (citing Twombly,

550 U.S. at 556). “[A] plaintiff’s obligation to provide the grounds of his entitlement to relief

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requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do. Factual allegations must be enough to raise a right to relief above the speculative

level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”

Twombly, 550 U.S. at 555 (quotation marks, citations and footnote omitted). “[W]here the

well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the

complaint has alleged — but it has not shown — that the pleader is entitled to relief.’” Iqbal, 556

U.S. at 679 (quotation marks and brackets omitted). Thus, “a plaintiff must do better than putting

a few words on paper that, in the hands of an imaginative reader, might suggest that something has

happened to her that might be redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403

(7th Cir. 2010) (emphasis in original). 

Here, Manley has provided no factual basis for his allegation that Commissioner Lemmon

conspired with the unknown white supremacist gang member inmate and encouraged him to attack

Manley in retaliation for his First Amendment activities. “[A] bare allegation of conspiracy [doe]s

not . . . state a claim.” Cooney v. Rossiter, 583 F.3d 967, 970 (7th Cir. 2009). “[B]efore defendants

in such a case become entangled . . ., the plaintiff must meet a high standard of plausibility.” Id. at

971. Because Manley has not plausibly alleged that Commissioner Lemmon had any involvement

in the attack perpetrated by the unknown inmate, he has not stated a claim for retaliation and

therefore has not alleged an ongoing violation of federal law. Consequently, this case does not

qualify for any of the exceptions to the Eleventh Amendment.

Nevertheless, even if the Eleventh Amendment were not an obstacle, this petition would still

not meet the requirements for obtaining a temporary restraining order (TRO) which can only be

issued when “(A) specific facts in an affidavit or a verified complaint clearly show that immediate

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and irreparable injury, loss, or damage will result to the movant before the adverse party can be

heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give

notice and the reasons why it should not be required.” Federal Rule of Civil Procedure 65(b). Here,

Manley has not submitted an affidavit or verified complaint and since he is proceeding pro se, no

attorney certification has been provided. However, even if neither of those procedural reasons

precluded issuing a TRO, Manley has not clearly shown that he is subject to an immediate and

irreparable injury. Rather, he has merely stated that he was attacked one time by an unknown inmate.

He speculates that inmate was a white supremacist gang member who conspired with Commissioner

Lemmon to retaliate for his First Amendment activities, and states that he is in fear of another attack.

That fear is understandable, because “[p]risons are dangerous places. Housing the most aggressive

among us, they place violent people in close quarters.” McGill v. Duckworth, 944 F.2d 344, 345 (7th

Cir. 1991). He states that he has been denied protective custody. But if the information in this

petition is all that he relayed to prison authorities when he requested protective custody, it would

not be surprising that he was denied because general requests for help, expressions of fear, and even

prior attacks are insufficient to alert guards to the need for action. Klebanowski v. Sheahan, 540 F.3d

633, 639-40 (7th Cir. 2008). 

Moreover, the standards for a TRO are not the only obstacle that would preclude injunctive

relief transferring Manley into the custody of the Bureau of Prisons. 

The PLRA circumscribes the scope of the court’s authority to enter an

injunction in the corrections context. Where prison conditions are found to violate

federal rights, remedial injunctive relief must be narrowly drawn, extend no further

than necessary to correct the violation of the Federal right, and use the least intrusive

means necessary to correct the violation of the Federal right. This section of the

PLRA enforces a point repeatedly made by the Supreme Court in cases challenging

prison conditions: Prison officials have broad administrative and discretionary

authority over the institutions they manage.

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Westefer v. Neal, 682 F.3d 679 (7th Cir. 2012) (quotation marks, brackets, and citations omitted).

Nevertheless, merely because the court must deny the current request for a TRO does not

mean that Manley may not be able to obtain some type of relief if given the opportunity to re-plead.

Therefore, consistent with the requirements of Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013),

the clerk will send him a Prisoner Complaint form. 

For the foregoing reasons, the court:

(1) DENIES the request for a temporary restraining order (DE 1);

(2) DIRECTS the clerk to place this cause number on a blank Prisoner Complaint 42 U.S.C.

§ 1983 form and send it to James E. Manley; 

(3) GRANTS James E. Manley until January 16, 2014, to submit the complaint; and 

(4) CAUTIONS James E. Manley that if he does not respond by that deadline, this case will

be dismissed without further notice pursuant to 28 U.S.C. § 1915A because it does not state a claim. 

SO ORDERED.

ENTERED: December 5, 2013 

 /s/ JON E. DEGUILIO 

Judge

United States District Court

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