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McCullough v. Holy Cross College

United States District Court, N.D. Indiana, South Bend Division

June 8, 2018

HOLY CROSS COLLEGE, et al., Defendants.


          Robert L. Miller, Jr. Judge

         Anthony Kevin McCullough, a prisoner without a lawyer, filed a complaint naming seven defendants. “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). Nevertheless, the court must review prisoner complaints pursuant to 28 U.S.C. § 1915A.

         Mr. McCullough is the only source of information at this point, and here is what he says happened. Mr. McCullough, an inmate housed at the Westville Correctional Center, has been taking college classes through the Holy Cross, University of Notre Dame, Westville Education Initiative. He was on course to graduate with an associate degree in liberal studies on December 16, 2017. This would have enabled him to be released from prison one year earlier. He planned to then work toward a bachelor's degree, which would have resulted in a further reduction in his sentence. But Mr. McCullough experienced a status change at the prison and wasn't awarded a degree. As a result, he has sued Holy Cross College, Jamie Bush (a Holy Cross College Volunteer), Alicia Serocynski, Ph.D. (Director of the Westville Education Initiative), David T. Tyson (President of Holy Cross College), Justin Watson, Ph.D. (Provost of Holy Cross College), the University of Notre Dame, and Hiroko Harrison (Registrar of Holy Cross College). He asks that an associate degree be awarded, that he be readmitted to the program so he can pursue his bachelor's degree, and that he be awarded monetary damages.

         Mr. McCullough's problems began on November 14, 2017, when it was discovered that one of the Holy Cross College volunteers, Jamie Bush, was having a sexual relationship with one of Mr. McCullough's classmates. When discovered, Ms. Bush was removed from the facility. A few days later, Mr. McCullough received an odd and unsolicited email by way of the prison's Jpay system. The email was from someone he did not know, and it read as follows:

Please tell the ARAB, the one from Saudi Arabia / Seattle that I love him. Tell him I will do and say whatever it takes to get him out of this. I will say it is all my fault. I talked to the Dr. And we both had a good cry.

(ECF 1 at 6.) Mr. McCullough responded as follows:

You must have me confused with someone else. I don't know you or who you are talking about. It appears you have some problems in your life that don't concern me nor do I want them to. Good luck. Be well.

(Id.). Mr. McCullough tried to remove this person from his Jpay list, but he was unable to do so. A reply came a few days later, revealing to Mr. McCullough for the first time that the author was Ms. Bush.

Ok, ok, ok, sure. Please tell the ARAB, you know who I love him. Enjoy your Pilatus Mi Amigo JB.

(Id.) Ms. Bush deleted her Jpay contact after sending her reply, so no further communication occurred between Mr. McCullough and Ms. Bush.

         On November 30, 2017, while in the middle of giving a final oral presentation, Mr. McCullough was removed from class and told he was being relocated to a different dorm. That same day his ability to use the Jpay kiosk was permanently suspended for unauthorized contact with a volunteer. (ECF 1-1 at 13.)

         Also on November 30, 3017, Mr. McCullough wrote to Dr. Serocynski telling her of his status change and expressing a desire to ensure that all of his remaining work was turned in so he could complete his associate degree as scheduled and receive his one year time cut. (ECF 1-1 at 15-16.) Mr. McCollough knew from Dr. Serocynski's prior actions and words that she didn't like him, so one solution he proposed was that he simply be given F's on his remaining exams, knowing his grades were high enough that he would still graduate. (ECF 1 at 7.) He wrote his professors, too, asking that he be allowed to take his final exams and turn in his final papers. But, Dr. Serocynski told the professors not to accept any work turned in by Mr. McCullough. Rather than being permitted to finish his course work, Mr. McCullough was given incompletes.

         Mr. McCullough met with Kenneth Watts on December 27, 2017, and discussed the Jpay exchange between him and Ms. Bush and its impact on his participation in the Westville Education Initiative. (ECF 1 at 8.) Mr. McCullough explained what happened, but Mr. Watts indicated that moving him back to the dorm wouldn't help him because “Alicia Serocynski is not accepting you back into the college program.” (ECF 1 at 8.) It was further explained that the reason was “because Alicia Serocynski does not like you, and she is choosing to give you an incomplete instead of your degree.” (Id.) When Mr. McCullough noted that the IDOC policy would allow him to return to the program in six months, Mr. Watts stated, “I have nothing to do with that. Alicia Serocynski said, ‘she is not letting you return to the program, ' and she doesn't like you so she is doing this because she can.” (Id.)

         “In order to state a claim under [42 U.S.C.] § 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). For a private party to be held liable under 42 U.S.C. § 1983, “the state must somehow be responsible for the allegedly unlawful actions taken by the party.” Wade v. Byles, 83 F.3d 902, 905 (7th Cir. 1996). Mr. McCullough has sued seven defendants, but he hasn't alleged that any of them were acting under color of state law. While the conduct of private actors can transform them into state actors for § 1983 purposes, the facts must permit an inference that defendant's actions are “fairly attributable to the state.” L.P. v. ...

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