Sebolt v. United States of America

Filing 48

MEMORANDUM Opinion: For the reasons stated in the accompanying Memorandum Opinion, the Government's motion to dismiss is granted. See Order for further details. Civil case terminated. Hearing set for 2/21/18 is stricken. Signed by the Honorable Samuel Der-Yeghiayan on 2/15/2018. Mailed notice(ep, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PHILIP M. SEBOLT,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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No. 17 C 3866

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant United States of America’s
motion to dismiss. For the reasons stated below, the motion to dismiss is granted.

BACKGROUND
Plaintiff Philip M. Sebolt (Sebolt), currently an inmate at the Federal
Correctional Institution Terre Haute (FCI), brings this pro se civil action claiming that
he was falsely arrested and falsely imprisoned when he was detained in the Special
Housing Unit (SHU) at the Metropolitan Correctional Center in Chicago (MCC)
between June and August 2013. Sebolt alleges that upon transfer to the MCC on June
17, 2013, placement in the SHU lacked regulatory authority, lacked statutory
authority, violated the Administrative Procedures Act (APA), and lacked due process.
Sebolt alleges that he has exhausted his administrative remedies and that his present

claims are ripe for judicial action. Sebolt includes in his complaint a single claim that
he “was restrained and unlawfully detained in a tiny barron prison cell against his will
and stripped of all his liberties by the United States for an indeterminate period of
time without any due process protection and in violation of Illinois law on the tort of
false arrest and false imprisonment” (Count I). (Compl. Par. 69-71). The United
States now moves to dismiss the claim under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6).

LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) (Rule 12(b)(1)) requires a court to
dismiss an action when it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1);
see also Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995)(stating that when
reviewing a motion to dismiss brought under Rule 12(b)(1), the court “must accept as
true all well-pleaded factual allegations, and draw reasonable inferences in favor of
the plaintiff”). When subject matter jurisdiction is not apparent on the face of the
complaint and is contested, “the district court may properly look beyond the
jurisdictional allegations of the complaint . . . to determine whether in fact subject
matter jurisdiction exists.” Sapperstein v. Hager, 188 F.3d 852, 855-56 (7th Cir.
1999)(internal quotations omitted)(quoting United Transportation Union v. Gateway
Western Railway Co., 78 F.3d 1208, 1210 (7th Cir. 1996)). The burden of proof in

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regards to a Rule 12(b)(1) motion is on the party asserting that the court has subject
matter jurisdiction. Id.
In ruling on a motion to dismiss brought pursuant Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences that
favor the plaintiff, construe the allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in
the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th
Cir. 2012); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir.
2002). A plaintiff is required to include allegations in the complaint that “plausibly
suggest that the plaintiff has a right to relief, raising that possibility above a
‘speculative level’” and “if they do not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir.
2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007));
see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that “[t]o survive
a motion to dismiss, the complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face,” and that “[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”)(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations
omitted).

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DISCUSSION
This court has liberally construed Sebolt’s pro se filings. See Parker v. Four
Seasons Hotels, Ltd., 845 F.3d 807, 811 (7th Cir. 2017)(stating that a “trial court is
obligated to liberally construe a pro se plaintiff’s pleadings”)(citing Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Kelley v. Zoeller, 800 F.3d 318, 325 (7th Cir. 2015);
Nichols v. Mich. City Plant Planning Dep’t, 755 F.3d 594, 600 (7th Cir. 2014));
Greer v. Board of Educ. of City of Chicago, Ill., 267 F.3d 723, 727 (7th Cir.
2001)(indicating that a court should “liberally construe the pleadings of individuals
who proceed pro se”). Therefore, although Sebolt only lists one count in his
complaint, the Court has interpreted Sebolt’s complaint to contain the following
claims: (1) that the United States violated the Federal Tort Claims Act (FTCA) by
falsely arresting and imprisoning Sebolt, (2) that the United States violated the
Administrative Procedures Act (APA), and (3) that Sebolt was denied Due Process.

I. FTCA
The United States argues that the FTCA does not authorize suit as there is no
state analog for Sebolt’s claim, that the discretionary function exception bars suit
under the FTCA, and that Sebolt’s allegations fail to state a claim for false arrest or
false imprisonment in Illinois.

A. No State Analog
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The United States argues that this court lacks jurisdiction over Sebolt’s FTCA
claim because no state analog for Sebolt’s claim exists. The United States
acknowledges that false imprisonment and false arrest are generally cognizable in
Illinois, but asserts that there is no analogous false arrest or false imprisonment cause
of action in Illinois for a private entity where the claim depends, not on allegations
challenging the fact of confinement, but on disagreement by a plaintiff with a specific
place of confinement within a prison. (United States Dis. 5). Sebolt argues that the
standard for finding a parallel to Sebolt’s claim under Illinois law is not overly
stringent and should be applied broadly (Sebolt Ans. 2-3). Sebolt also argues that
restraint is established simply by a person being compelled to go where he or she does
not wish to go or remaining where he or she does not wish to remain. (Sebolt Ans. 3).
Combining these interpretations of case law and comparing his circumstances to that
of an employee held against her will in her employer’s office, Sebolt concludes that
his detention in the SHU constitutes false imprisonment. (Sebolt Ans. 4-5). Sebolt
also argues that he is not alleging he was unlawfully held in the Bureau of Prisons
(BOP) custody (or a specific place of confinement within a prison) as the result of an
unlawful arrest, criminal conviction, or sentence, but rather that he was unlawfully
restrained and further deprived of his liberties as a result of a memo issued by the
Administrator of the Counter-Terrorism Unit (CTU) directing the Warden and the
Captain to detain Sebolt in the SHU at the MCC (the Memo), which was far removed
from any judicial legal process. (Sebolt Ans. 7).
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Under the FTCA, an individual is permitted “to bring suit in federal court
against the United States for injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. §1346(b)(1).” Palay v. U.S., 349 F.3d 418, 425 (7th Cir. 2003). Looking to
Illinois law, “‘[t]o state a cause of action for false imprisonment, the plaintiff must
allege that his personal liberty was unreasonably or unlawfully restrained against his
will and that defendant(s) caused or procured the restraint.’” Arthur v. Lutheran Gen.
Hosp., Inc., 692 N.E.2d 1238, 1243 (Ill. App. Ct. 1998)(citing Vincent v. Williams,
664 N.E.2d 650, 654 (Ill. App. Ct. 1996)). However, no cause of action for false
imprisonment exists where imprisonment is under legal authority or detention is made
by virtue of legal process issued by a court. Arthur, 692 N.E.2d at 1243.
In the instant action, Sebolt was already in BOP custody at the time of his
confinement in the SHU at the MCC. (Compl. Par. 3, 9, 15). Sebolt does not contest
that his custody is lawful, and Illinois law does not recognize a false imprisonment
cause of action for a lawfully incarcerated inmate allegedly unlawfully assigned to
administrative detention status. Therefore, because Sebolt’s imprisonment is lawful,
his false imprisonment claim fails. Further analysis of the many cited cases does not
change this conclusion.
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Turning to Sebolt’s contention that he was deprived of his liberties as a result
of the Memo, such an argument implicates both due process and APA violations,
which are discussed in later sections.
Therefore, the motion to dismiss the FTCA claim on the grounds that no state
analog exists is granted.

B. Discretionary Function Exception
The United States argues that Sebolt’s FTCA claim fails for another
independent reason, namely that Sebolt’s claim is barred by the discretionary function
exception to the FTCA. The United States argues that the conduct at issue involved an
element of judgment and choice and that the United States’ investigatory and
enforcement activities involved public policy considerations. The United States
argues that 28 C.F.R. §541.23 (§541.23) addresses circumstances in which an inmate
may be placed in administrative detention status. (United States Dis. 7). Sebolt argues
that although §541.23 confers discretion to BOP officials, the official(s) involved
must act in accordance with certain limits upon discretion. (Sebolt Ans.9). Sebolt
argues that because he allegedly did not fit any of the criteria under §541.23, there
was no authority for Sebolt’s detention in the SHU and the discretionary function
exception does not apply. Sebolt also argues that the Warden who placed him in the
SHU was bound to do so by the Memo and therefore the Warden had no room for
judgment or choice in placing Sebolt in the SHU. (Sebolt Ans. 10).
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Generally under the FTCA, individuals are entitled to sue for injuries they
suffer at the hands of negligent federal officials; however, “Congress has exempted a
variety of claims from the coverage of the statue, including ‘[a]ny claim … based
upon the exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused.’” Palay, 349 F.3d at 427 (citing 28
U.S.C. § 2680(a)). The two requirements for the exception to apply are (1) the
complained of act must be discretionary in the sense that it “‘involv[es] an element of
judgment or choice’” and (2) the governmental action(s) or decision(s) must be based
on considerations of public policy. Palay, 349 F.3d at 427-28 (citing United States v.
Gaubert, 499 U.S. 315, 323 (1991)).
In the instant action, Sebolt was transferred to the MCC from the FCI on June
17, 2013 and was housed in the SHU between June 18, 2013 and August 19, 2013.
(Compl. Par. 15, 18, 22), (Sebolt Ans. 1). It is undisputed that §541.23 confers
discretion to BOP officials in deciding whether to place an inmate in the SHU under
administrative detention status. (Sebolt Ans. 9), (United States Reply 4). However,
Sebolt contends that he did not fit any of the criteria under said regulation which
would authorize his placement in the SHU and that although he had been given
several reasons for his placement in the SHU, the true and only reason he was placed
in the SHU was to monitor his communications with persons in the community,
which is not an authorized reason under §541.23. That is simply not the case.
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Accepting as true Sebolt’s well pleaded factual allegations, on June 18, 2013,
Sebolt was placed in the SHU under administrative detention status pending
classification and pending captain review. (Compl. Par. 5). Under §541.23(a), an
inmate may be placed in administrative detention status if he or she is a new
commitment pending classification. 28 C.F.R. § 541.23(a) (2011). Therefore, Sebolt
fit the criteria under the applicable regulation to be placed in administrative detention
status at that juncture.
On June 25, 2013, a response to Sebolt’s administrative challenge to his
placement in the SHU indicated that the Memo dated June 18, 2013 issued by the
Administrator of the CTU directed the Warden of the MCC to provide and maintain
conditions of confinement as closely as possible to a Communications Management
Housing Unit (CMU) environment by placing a CMU inmate into Administrative
Detention as per policy. (Compl. Par. 7). Sebolt contends that despite the Memo being
allegedly unlawful, the Memo nonetheless gave the Warden no room for judgment or
choice in deciding whether to remove Sebolt from the MCC’s general population.
(Sebolt Ans. 10). As the United States has pointed out, regulations relating to the
operation of CMU’s have been in effect only since 2015, and no statute, regulation, or
binding policy governs a situation where an inmate designated to a CMU is
temporarily housed at a facility that does not have a CMU. (United States Mot. 7-8),
see 28 C.F.R. §§ 540.200-540.205 (2015). Therefore, the Memo Sebolt references and
the statements allegedly contained therein do nothing to negate the discretionary
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authority of BOP officials under §541.23, the regulation governing administrative
detention status, to place Sebolt in administrative detention status.
Sebolt contends that at some point he was verbally told that the correct criteria
for Sebolt’s placement in the SHU should be holdover status rather than pending
classification. (Compl. Par. 8). Sebolt states that “it is undeniable that Sebolt was in
holdover status during his stay at the MCC Chicago,” but argues that he was no
longer in transit once he arrived at the MCC and thus no longer fit the criteria of
“during transfer to [another] destination.” (Sebolt Ans. 11). This is confusing at best
because if Sebolt is in agreement that he was in holdover status during his stay at the
MCC, that is a sufficient reason for his placement in administrative detention status
under §541.23 and defeats his argument that he did not fit any of the criteria under
said regulation which would authorize his placement in the SHU. As the United States
points out and Sebolt’s complaint establishes, Sebolt concedes that he was at the
MCC only temporarily. (United States Dis. 7), (Compl. Par. 15). Again, the BOP
officials exercised discretion in classifying Sebolt as holdover status, and as such, the
first requirement of the discretionary function exception is satisfied.
Sebolt contends that a response to Sebolt’s official request for administrative
remedy stated that the Warden was authorized to place Sebolt in the SHU under
administrative detention status because Sebolt’s continued presence in the general
population posed a serious threat to himself or others. (Compl. Par. 9). Once again,
this stated reason for placing Sebolt in administrative detention status is a reason
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under §541.23, namely §541.23(c) which states in relevant part that an inmate may be
removed from general population if the inmate’s “presence in the general population
poses an threat to life, property, self, staff, other inmates, the public, or to the security
or orderly running of the institution,” and the inmate is “pending transfer to another
institution or location.” 28 C.F.R. §541.23(c) (2011). Sebolt takes issue with the
phrase “pending transfer,” but does not point to any definition of “pending transfer”
that would mandate whether Sebolt’s temporary, approximately two-month stay at the
MCC qualifies as “pending transfer” and thus fails to allege anything more than a
disagreement with how BOP officials exercised discretion in placing Sebolt in
administrative detention.
On July 24, 2013, Sebolt was told that his placement in the SHU was in order
to monitor his communications with persons in the community. (Compl. Par. 10).
This serves as the crux of Sebolt’s argument that his placement in administrative
detention status fell outside the scope of §541.23 because monitoring communications
is not a listed reason for placement in administrative detention status under §541.23.
(Compl. Par. 33-34). The regulations establishing and describing CMU’s, 28 C.F.R.
§§540.200-540.205 (§§540.200-540.205), proposed in 2010 and implemented in
2015, shed light on the purpose of CMU’s. As cited in Sebolt’s complaint, §540.200
defines the purpose and scope of CMU’s, in relevant part as providing “an inmate
housing unit environment that enables staff to more effectively monitor
communication between inmates in CMUs and persons in the community,” and that
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such “ability to monitor such communication is necessary to ensure the safety,
security, and orderly operation of correctional facilities, and protection of the public.”
(Compl. Par. 13)(citing 28 C.F.R. § 540.200 (2015)). Sebolt does not contest his
assignment to the CMU at the FCI in 2013. (Compl. Par. 9). Therefore, although
Sebolt alleges that the true and only reason he was placed in the SHU was to monitor
his communications with persons in the community and that such reason falls outside
the scope of §541.23, such monitoring does support a valid reason to place an inmate
in administrative detention status under §541.23. As explained above, CMU’s
monitor communication to ensure the safety and security of correctional facilities and
to protect the public, and §541.23 authorizes placement in administrative detention if
an inmate’s presence in general population poses a threat to, in relevant part, the
public or to the security or orderly running of the institution. See 28 C.F.R.
§541.23(c) (2011). Further, as argued by the United States, §541.23 does not define
every circumstance when an inmate is “pending transfer,” and “poses a threat to life,
property, self, staff, other inmates, the public, or to the security or the orderly running
of the institution.” Sebolt’s assignment to the CMU at the FCI implicated the safety
concerns that necessitated monitoring his communications, and since the MCC did
not have a CMU, the BOP officials exercised their discretion to place Sebolt in
administrative detention status under the authority of §541.23(c). Again, Sebolt’s
allegations amount to a disagreement with being placed in administrative detention

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status but do not call into question the BOP officials’ discretion to do so under
§541.23.
Throughout the approximately two months Sebolt spent at the MCC and in the
SHU under administrative detention status, he was provided reasons under §541.23 to
justify his administrative detention status. Sebolt makes arguments as to why the
reasons were incorrect as applied to him, but he does not allege facts to show that the
BOP officials did not have discretion to place him in administrative detention status.
Therefore, the first requirement of the discretionary function exception is satisfied.
Regarding the second requirement for the discretionary function exception,
Sebolt agrees with the United States that the defendant’s investigatory and
enforcement activities involved public policy considerations. (Sebolt Ans. 13).
Therefore, the second requirement need not further be discussed. Based on the above,
the motion to dismiss the FTCA claim on this independent ground is granted.

C. Failure to State a Claim
The United States argues that Sebolt’s FTCA claim should be dismissed for yet
a third independent reason, that Sebolt’s allegations in his complaint fail to state a
claim for false arrest or false imprisonment in Illinois. The United States argues that
Sebolt was in custody serving a life sentence following his conviction for advertising
child pornography and that neither Sebolt’s conviction nor sentence was reversed,
expunged, declared invalid, or otherwise questioned by a court. (United States Dis.
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10-11). Sebolt states that he already is in custody by a lawfully obtained criminal
conviction and sentence, but complains that the allegedly unlawful Memo issued by
the Administrator of the CTU effectively and unlawfully extended the CMU to the
MCC which resulted in Sebolt’s unlawful placement in the SHU, further depriving
Sebolt’s liberty and causing him mental and emotional injury/suffering. (Sebolt Ans.
13-14).
Under Illinois law, a plaintiff must establish “that his personal liberty was
unreasonably or unlawfully restrained against his will and that defendant(s) caused or
procured the restraint,” in order to recover damages for false imprisonment. Arthur,
692 N.E.2d at 1243. However, “imprisonment under legal authority is not false
imprisonment.” Id. For example, a lawfully obtained conviction has been held to
defeat a false imprisonment claim under Illinois law. See Mayorov v. United States,
84 F.Supp.3d 678, 704 (N.D. Ill. 2015)(stating that because the inmate was lawfully
in IDOC custody (i.e. at all times remained in state custody pursuant to a lawfully
obtained conviction), his false imprisonment claim was defeated under Illinois law).
In the instant action, it is undisputed that Sebolt was in custody by a lawfully
obtained criminal conviction and sentence. (Sebolt Ans. 13), (Compl. Par. 3, 9).
Applying Illinois state law, Sebolt’s false imprisonment claim thus fails. Therefore,
the motion to dismiss the FTCA claim on this independent ground is granted.

II. APA
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The United States argues that to the extent the court construes Sebolt’s
complaint as asserting a claim for an alleged violation of the APA, 5 U.S.C. §551, et
seq., any such claim fails because the authority of the BOP to designate a federal
inmate’s place of imprisonment, transfers to other federal facilities, and similar
matters, is governed by 18 U.S.C. §§3621-3626, which is specifically exempt from
challenge under the APA. (United States Dis. 3). Sebolt states in his complaint that
the Administrator of the CTU violated the APA by either amending §541.23 or by
creating new substantive policy without public notice or opportunity to comment in
violation of 5 U.S.C. §553(b) and (c). (Compl. Par. 40). Sebolt contends that the
policy of placing inmates in the SHU in administrative detention status for the sole
purpose of monitoring communications, such policy contained in the Memo,
effectively amends the regulation listing reasons for placing an inmate in
administrative detention status, and that any such policy is not included in the
regulations pertaining to CMU’s. (Compl. Par. 41).
The APA permits judicial review of an agency’s decision, including decisions
made by the BOP, except when the decision is committed to agency discretion by law
or another federal statute specifically precludes review. Van v. Fed. Bureau of
Prisons, 2014 WL 4419545 at *2 (S.D. Ill. 2014)(citing 18 U.S.C. §3625). A court
may not review an agency action where statues preclude judicial review or where
agency action is committed to agency discretion by law. Brown v. Holder, 770
F.Supp.2d 363, 365 (D.C. 2011)(citing 5 U.S.C. §701(a)(2); Heckler v. Chaney, 470
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U.S. 821, 828 (1985)). Congress has specifically provided that the BOP’s
discretionary determinations made pursuant to 18 U.S.C. §3621 are not subject to
judicial review under the APA. Van, 2014 WL 4419545 at *2.
In the present case, Sebolt claims that the Memo stating that conditions of
confinement should be provided and maintained as closely as possible to a CMU
environment by placing a CMU inmate into administrative detention as per policy
either amended the regulation regarding administrative detention or created new
substantive policy. However, §541.23 which defines reasons an inmate may, at the
discretion of BOP officials, be placed in administrative detention status, derives its
authority from, in relevant part, 18 U.S.C. §§3621, 3622, and 3624. 28 C.F.R.
§541.23 (2011). Therefore, the BOP officials’ discretionary decisions made pursuant
to §541.23 are not subject to judicial review under the APA.
Sebolt is correct that a policy of placing inmates in the SHU in administrative
detention status for the sole purpose of monitoring communications is not contained
either in §541.23 or §§540.200-540.205, but no such policy was used to place Sebolt
in administrative detention status. Looking at Sebolt’s complaint, he states that the
Memo issued by the Administrator of the CTU directed the Warden at the MCC “to
provide and maintain conditions of confinement ‘closely as possible’ to a CMU
environment (general population) ‘by placing [a CMU] inmate into Administrative
Detention as per policy’ (segregation).” (Compl. Par. 7). Sebolt ultimately seems to
have issue with the fact that in his CMU at FCI, he was part of a general population
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housing unit, but because the MCC does not have a CMU, in order to provide
conditions similar to that of the CMU, he was placed in administrative detention
status in the SHU. As previously explained, by virtue of being assigned to a CMU, a
designation Sebolt does not dispute, monitoring of his communication was deemed
necessary to ensure the safety, security, and orderly operation of correctional facilities
and protection of the public. Because no regulation or binding policy governs a
situation where an inmate designated to a CMU is temporarily transferred to a facility
that does not have a CMU, a BOP official was told via the Memo to place the CMU
inmate into administrative detention as per policy. Applying the administrative
detention policy, §541.23, BOP officials determined Sebolt fit several reasons which
justified his placement in administrative detention. (Compl. Par. 18, 24, 29, 31, 33). A
new substantive policy simply was not created.
Therefore, as per the aforementioned reasons, the APA claim is dismissed.

III. Due Process
Regarding the due process claim, as is noted by the United States, such due
process claim was dismissed before transfer of this matter to this court. (United States
Dis. 3). Additionally, Sebolt stated in his motion to correct and/or clarify the record
(Motion to Correct) that “the court dismissed Sebolt’s due process claim. Sebolt
clarifies, however, that he is not bringing a due process violation at this time.” (Sebolt

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Mot. to Correct 2). Therefore, this court need not further address the due process
claim.

CONCLUSION
Based on the foregoing analysis, the United States’ motion to dismiss is
granted.

________________________________
Samuel Der-Yeghiayan
United States District Court Judge

Dated: February 15, 2018

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