Mansoori v. Rios et al
MERIT REVIEW ORDER entered by Judge Michael M. Mihm on 12/7/2017. See full written Order.(VH, ilcd)
Thursday, 07 December, 2017 03:49:32 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
RICARDO RIOS, et al.,
MERIT REVIEW ORDER
Plaintiff, a federal prisoner confined at the Federal Correctional Institution in Pekin,
Illinois (“FCI-Pekin”), files a complaint after payment of the filing fee. Plaintiff asserts actions
under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and the
Administrative Procedures Act (“APA”), 5 U.S.C. §§ 554-555 and §§ 701-706. The case is
before the Court for a merit review pursuant to 28 U.S.C. § 1915A. In reviewing the Complaint,
the Court accepts the factual allegations as true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649-51 (7th Cir. 2013). However, conclusory statements and
labels are insufficient. Enough facts must be provided to “state a claim for relief that is plausible
on its face.” Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013)(citation and internal
quotation marks omitted). While the pleading standard does not require “detailed factual
allegations”, it requires “more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Wilson v. Ryker, 451 Fed. Appx. 588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
Plaintiff claims to suffer from more than 20 chronic health conditions including Type II
Diabetes, rheumatoid arthritis, nerve pain, joint pain, carpal tunnel and bilateral plantar fasciitis.
Plaintiff claims that for 18 years he has had permits for medical shoes and orthotics due to his
diabetes and rheumatoid arthritis. On November 28, 2012, he was interviewed by Defendants
Rios, Moats and Johnson after he requested the renewal of his permit for medical shoes. FCIPekin Medical Director, Dr. Moats indicated that he would review Plaintiff’s medical file and
render a decision. He did so at a later date, revoking Plaintiff’s permits.
Plaintiff was thereafter issued institutional boots which he was unable to tie due to the
chronic conditions in his hands. He claims that without the medical shoes his diabetic
neuropathy worsened. Plaintiff filed an Administrative Remedy, grieving the matter. Plaintiff’s
administrative remedy was denied at the institutional level and he appealed to the Central Bureau
of Prisons (“BOP”) Office in Washington, D.C. During the pendency of the appeal, Plaintiff’s
permits were reinstated and the appeal was dismissed as moot.
Plaintiff claims, however, that his permits expired after one year and were not renewed.
On September 23, 2016, he was examined by Dr. Lee Ho, not a defendant, who agreed that he
should have medical shoes. It is unclear whether Plaintiff was, in fact, provided the shoes after
this examination. Plaintiff requests compensatory and punitive damages; as well as injunctive
relief, that all of his medical permits be restored and that he be provided new medical shoes
every six months.
Plaintiff’s Bivens claim is brought against Defendants Warden Rios, Dr. Moats and
Health Administrator Johnson in their individual capacities, alleging that they were deliberately
indifferent to his serious medical needs in violation of the Eighth Amendment. It is well
established that deliberate indifference to a serious medical need is actionable as an Eighth
Amendment violation. Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008). A deliberate
indifference claim must establish “(1) an objectively serious medical condition; and (2) an
official's deliberate indifference to that condition.” Arnett v. Webster, 658 F.3d 742, 750 (7th
Cir. 2011). Deliberate indifference is proven by demonstrating that a prison official knows of a
substantial risk of harm to an inmate and “either acts or fails to act in disregard of that risk.”
Id. at 751. Deliberate indifference may be shown where prison officials delay the treatment of
an objectively serious medical need. Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir. 1996)
(internal citations omitted).
Plaintiff has alleged enough at this juncture for the Eighth Amendment claim to proceed
against Defendants Moats. He has failed to allege, however, that Defendants Rios or Johnson
participated in the decision to deny the permits or that they had the authority to overrule
Defendant Moats’s decision. See Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009),
“[p]ublic officials do not have a free-floating obligation to put things to rights, disregarding rules
(such as time limits) along the way. Bureaucracies divide tasks; no prisoner is entitled to insist
that one employee do another's job.…the Superintendent of Prisons and the Warden of each
prison, is entitled to relegate to the prison's medical staff the provision of good medical care.”
Plaintiff also alleges that Defendants’ actions violated the APA. It is unclear whether he
claims that the APA violation arose from the initial decision not to renew the permits or the
subsequent denial of his related grievances. Either way, Plaintiff claims that Defendants’
decisions were arbitrary, capricious, an abuse of discretion and not supported by substantial
The APA is codified at 5 U.S.C. § 554 et seq., and at 5 U.S.C. § 701 et seq. It allows
claims for injunctive relief but not money damages, for injury caused by agency action. Czerkies
v. U.S. Dep't of Labor, 73 F.3d 1435, 1438 (7th Cir.1996) (§ 702 allows judicial review of
agency actions, waiving the federal government's sovereign immunity). Here, however, Plaintiff
asserts his action against the individual FCI-Pekin Defendants and does not claim that their
denial of his grievances was a final agency action. Robbins v. Wilkie, 300 F.3d 1208, 1212 (10th
Cir. 2002) (“the APA contains no remedy whatsoever for constitutional violations committed by
individual federal employees unrelated to final agency action.”) See also Thelen v. Cross, 656
Fed. Appx. 778, 780 (7th Cir. 2016), reh'g denied (Aug. 30, 2016) (the APA does not authorize
action against a warden as a representative of an agency).
Furthermore, under its terms the APA does not apply if another statute precludes judicial
review. 5 U.S.C. § 701(2). 18 U.S.C. § 3621 et seq., which enumerates the BOP’s delegated
authority over federal prisoners has been determined to exclude APA judicial review of a BOP
“determination, decision, or order.” 18 U.S.C. § 3625. See Reeb v. Thomas, 636 F.3d 1224,
1226 (9th Cir. 2011) (the plain language of § 3625 prohibits the application of APA judicial
review to BOP powers codified at §§ 3621-3624). As a result, § 3621 (g)(1), which specifically
grants BOP authority to make medical and care decisions as to prisoners, is precluding from
APA judicial review under § 3625.
If the Court construes Plaintiff as asserting an APA claim for the denial of his grievances,
this is also is precluded under § 3625. See Scates v. Doe, No.15-2904, 2016 WL 8672963, at *7
(D.S.C. May 6, 2016), (‘[t]he administrative remedy [grievance] program is part of postsentence
administration and, therefore, may not be reviewed under the APA.) report and recommendation
adopted, No. 15-2904, 2016 WL 3769449 (D.S.C. July 13, 2016); Shepard v. Rangel, No.: 1201108, 2014 WL 7366662, at *14 (D. Colo. Dec. 24, 2014) (there is no APA jurisdiction over an
administrative remedy claim). Accordingly, Plaintiff’s APA claim is dismissed with prejudice, as
precluded by statute.
IT IS THEREFORE ORDERED:
This case shall proceed on Plaintiff’s Bivens claim of deliberate indifference as to
Defendant Moats. Plaintiff’s APA claim is DISMISSED with prejudice. Defendants Rios and
Johnson are DISMISSED. Plaintiff will have 30 days to file an amended complaint at to
Defendants Rios and Johnson, should he wish. Any claims not identified will not be included in
the case, except in the Court's discretion upon motion by a party for good cause shown, or by
leave of court pursuant to Federal Rule of Civil Procedure 15.
The Court will file a separate order AMENDING its text order of September 27,
2017, in which it indicated that the clerk would issue waivers of service after merit review. As
Plaintiff has paid the filing fee and is not proceeding in forma pauperis, it will be his
responsibility under CDIL-LR 16.3(D) to arrange service on Defendant. The clerk is directed to
send Plaintiff a copy of Fed. R. Civ. P. 4 and waivers of service for Defendant. If Defendant
does not return a signed waiver of service, Plaintiff will be responsible for arranging personal
service on him. If Plaintiff lacks the funds to pay for personal service, he may file a petition to
proceed in forma pauperis for the purpose of service.
If Defendant fails to sign and return a Waiver of Service to the Clerk within 30
days after the Waiver is sent, the Court will take appropriate steps to effect formal service on that
Defendant and will require that Defendant pay the full costs of formal service pursuant to
Federal Rule of Civil Procedure 4(d)(2). If a Defendant no longer works at the address provided
by Plaintiff, the entity for which Defendant worked at the time identified in the Complaint shall
provide to the Clerk Defendant's current work address, or, if not known, Defendant's forwarding
address. This information will be used only for purposes of effecting service. Documentation of
forwarding addresses will be maintained only by the Clerk and shall not be maintained in the
public docket nor disclosed by the Clerk.
Defendant shall file an answer within the prescribed by Local Rule. A Motion to
Dismiss is not an answer. The answer it to include all defenses appropriate under the Federal
Rules. The answer and subsequent pleadings are to address the issues and claims identified in
Plaintiff shall serve upon any Defendant who has been served, but who is not
represented by counsel, a copy of every filing submitted by Plaintiff for consideration by the
Court, and shall also file a certificate of service stating the date on which the copy was mailed.
Any paper received by a District Judge or Magistrate Judge that has not been filed with the Clerk
or that fails to include a required certificate of service will be stricken by the Court.
Once counsel has appeared for Defendant, Plaintiff need not send copies of filings
to that Defendant or to that Defendant's counsel. Instead, the Clerk will file Plaintiff's document
electronically and send notice of electronic filing to defense counsel. The notice of electronic
filing shall constitute notice to Defendant pursuant to Local Rule 5.3. If electronic service on
Defendants is not available, Plaintiff will be notified and instructed accordingly.
Counsel for Defendants is hereby granted leave to depose Plaintiff at Plaintiff's
place of confinement. Counsel for Defendants shall arrange the time for the depositions.
Plaintiff shall immediately notice the Court of any change in mailing address or
phone number. The Clerk is directed to set an internal court deadline 60 days from the entry of
this Order for the Court to check on the status of service and enter scheduling deadlines.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
SET AN INTERNAL COURT DEADLINE 60 DAYS FROM THE ENTRY OF
THIS ORDER FOR THE COURT TO CHECK ON THE STATUS OF SERVICE AND ENTER
LASTLY, IT IS ORDERED THAT IF A DEFENDANT FAILS TO SIGN AND
RETURN A WAIVER OF SERVICE TO THE CLERK WITHIN 30 DAYS AFTER THE
WAIVER IS SENT, THE COURT WILL TAKE APPROPRIATE STEPS TO EFFECT
FORMAL SERVICE THROUGH THE U.S. MARSHAL'S SERVICE ON THAT
DEFENDANT AND WILL REQUIRE THAT DEFENDANT TO PAY THE FULL COSTS OF
FORMAL SERVICE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(d)(2).
_____s/ Michael M. Mihm ______
MICHAEL M. MIHM
UNITED STATES DISTRICT JUDGE
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