Hardimon et al v. United States of America et al

Filing 12

ORDER DISMISSING CASE, denying 2 Motion for Leave to Proceed in forma pauperis filed by John M. Hardimon and Sarah Z. McBride and denying as moot 3 Motion to Appoint Counsel filed by John M Hardimon and Sarah Z. McBride: For the reasons thoroughl y explained in the attached Order, the Court DENIES Plaintiffs' motion for leave to proceed in forma pauperis (Doc. 2), DISMISSES this action without prejudice pursuant to 28 U.S.C. 1915(e)(2)(B), and FINDS MOOT Plaintiffs' motion for appointment of counsel (Doc. 3). Signed by Judge Michael J. Reagan on 7/12/11. (soh )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHN M. HARDIMON and
SARAH Z. McBRIDE,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
INTERNAL REVENUE SERVICE,
UNITED STATES HUMAN AND
HEALTH SERVICES - OIG,
UNITED STATES DEPT. OF LABOR,
LISA MADIGAN, Attorney General,
NATIONAL INS. CRIME BUREAU,
U.S. ATTORNEYS OFFICE HEALTH
CARE FRAUD TASK FORCE
SOUTHERN DISTRICT of ILLINOIS,
U.S. ATTORNEYS OFFICE, and
BLUE CROSS and BLUE SHIELD
INVESTIGATORS (IL and MO),
Defendants.

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Case No. 11-cv-0383-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, District Judge:
On May 10, 2011, John M. Hardimon filed four pro se civil lawsuits in this
District Court using a form designated “Pro Se Civil Rights Complaint (Non-Prisoner)”
and listing two Plaintiffs: (1) himself and (2) his wife, Sarah McBride. One of the four
cases is the above-captioned action. Along with the complaint in each case, Hardimon
filed a motion seeking leave to proceed in forma pauperis (without prepaying fees or
costs) and a motion for appointment of counsel.

1

Randomly assigned to the Honorable J. Phil Gilbert and transferred to the
undersigned District Judge, this case comes now before the Court for threshold review
of subject matter jurisdiction and resolution of Plaintiffs’ request for leave to proceed in
forma pauperis (“IFP”).
”Ensuring the existence of subject-matter jurisdiction is the court’s first
duty in every lawsuit.” Winters v. Fru-Con, Inc., 498 F.3d 734, 740 (7th Cir. 2007),
quoting McCready v. White, 417 F.3d 700, 702 (7th Cir. 2005), and citing Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83 (1998). So, when a new lawsuit is filed in
this Court, the complaint must be examined to make sure that federal subject matter
jurisdiction lies over the lawsuit.
Plaintiffs invoke subject matter jurisdiction under the federal question
statute, 28 U.S.C. § 1331, via alleged violations of rights secured by the United States
Constitution. Although the complaint states that this suit is based on 42 U.S.C. § 1983
(which applies to state and local officers), Plaintiffs’ claims (directed against a host of
federal officials) appear to be better construed as Bivens claims. Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971), established that the victims of
constitutional violations by federal agents can sue to recover damages against the
officials in federal court. In other words, although “more limited in some respects, … a
Bivens action is the federal analog to suits brought against state officials” under § 1983.
Hartman v. Moore, 547 U.S. 250, 255 n.2 (2006).
So, unlike several of Plaintiffs’ other recently-filed lawsuits, the abovecaptioned case at least invokes a basis for federal subject matter jurisdiction, arguably
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surviving threshold jurisdictional review. The Court’s inquiry does not end there,
however. If a plaintiff wishes to proceed in forma pauperis, the district court must both
(1) ensure that the plaintiff is indigent and (2) screen the complaint, dismissing with
prejudice any claims that are frivolous, malicious, or fail to state a claim upon which
relief can be granted. 28 U.S.C. § 1915(e)(2); Gladney v. Pendleton Corr. Facility, 302
F.3d 773, 775 (7th Cir. 2002), cert. denied, 538 U.S. 910 (2003).1
More specifically, as to indigence, 28 U.S.C. § 1915(a)(1) authorizes a
federal district court to allow a civil case to proceed without prepayment of fees, if the
movant submits an affidavit that includes a statement of all assets he possesses which
demonstrates that he is unable to pay the fees or give security therefor. As to screening
of the complaint, 28 U.S.C. § 1915(e)(2) requires this Court to carefully scrutinize the
record and “dismiss the case,” if the allegation of poverty is untrue, the action is
frivolous or malicious,2 the action fails to state a claim upon which relief can be granted,
or the action seeks monetary relief against a defendant who is immune from such relief.
When a plaintiff is a prisoner seeking redress from employees of a
government entity (for instance, the Bureau of Prisons), the district court must
promptly screen the complaint, whether or not the inmate proceeds in forma
pauperis. See 28 U.S.C. 1915A(a); Rowe v. Shake, 196 F.3d 778, 781 (7th Cir.
1999). In the instant case, the complaint was filed when Plaintiff Hardimon was
sentenced but still on bond, awaiting designation to a prison facility and not yet
a “prisoner.” See 28 U.S.C. § 1915A(c) (“As used in this section, the term
‘prisoner’ means any person incarcerated or detained in any facility who is
accused of, convicted of, sentenced for, or adjudicated delinquent for, violations
of criminal law….”).
1

2

As to frivolity -- if a suit filed IFP is irrational or delusional, § 1915(e)
requires the district court to dismiss it. And if the allegations of the complaint are
so fanciful that they fail to engage the court’s subject matter jurisdiction, the
dismissal should be without prejudice. See Gladney, 302 F.3d at 774; AfricanAmerican Slave Descendants Litigation, 471 F.3d 754, 758 (7th Cir. 2006).
3

Id.

With these standards in mind, the undersigned Judge reviews the May 10, 2011

complaint herein and immediately encounters three significant obstacles.
First, to the extent that the complaint challenges Hardimon’s conviction in
the criminal case (Case No. 10-CR-30170-MJR), it runs afoul of the Heck doctrine. In
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the United States Supreme Court held
that a civil plaintiff could not bring a § 1983 claim against prosecutors and investigators
who allegedly engaged in an unreasonable and arbitrary investigation leading to his
arrest.

The Court concluded that the prisoner’s claims in the § 1983 suit directly

attacked the validity of his underlying conviction, and those claims could not be
brought via civil complaint until the criminal conviction was overturned.
The Heck Court declared that to recover damages for an unconstitutional
conviction (or for other harms caused by actions whose unlawfulness would render a
conviction or sentence invalid), a § 1983 plaintiff first must prove that his conviction
was reversed on direct appeal, expunged, or called into question by a federal court’s
issuance of a writ of habeas corpus. “A claim for damages bearing that relationship to a
conviction or sentence that has not been so invalidated is not cognizable under § 1983.”
Heck, 512 U.S. at 486-87.

See also Jogi v. Voges, 480 F.3d 822, 836 (7th Cir. 2007)(citing

Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005), for the proposition that Heck prevents
using § 1983 or Bivens to circumvent the need to challenge the validity or duration of
a conviction using the vehicle of habeas corpus).
As succinctly summarized by the Seventh Circuit five months ago: “The
Supreme Court held in Heck that arguments attacking the validity of a conviction
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cannot be advanced under § 1983 unless the conviction or sentence previously has been
invalidated.” Polzin v. Gage, 636 F.3d 834, 836 (7th Cir. 2011).
So a plaintiff may not sue for damages based on violations of his civil
rights arising from a criminal prosecution if a judgment in plaintiff’s favor would
necessarily imply the invalidity of the conviction or sentence. VanGilder v. Baker, 435
F.3d 689 (7th Cir. 2006).

And the rule announced in Heck applies not just to § 1983

claims but to Bivens claims as well.

See, e.g., Case v. Milewski, 327 F.3d 564, 569 (7th

Cir. 2003); Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997).
Thus, any suit that would undermine the conviction or sentence must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has been
invalidated. Heck, 512 U.S. at 487. In the case sub judice, the complaint attempts to do
precisely this – undermine the validity of Hardimon’s conviction based on alleged
abuses of power by the investigators, F.B.I. agents, and prosecutors who served the
search warrants, investigated the health care fraud perpetrated by Hardimon, and
prosecuted the case against him in this Court.
By way of example, the complaint alleges that in executing a search
warrant, I.R.S. agents, despite being “well aware that the Hardimon family had
representation,” visited the family first and “[let] the attorneys know about it later”
(Doc. 1, p. 7).

This and an additional allegation that the I.R.S. agents questioned

Plaintiffs without first permitting them call their lawyers suggest that Hardimon is
attacking his criminal conviction by interposing arguments he might have made (but
did not raise) via suppression motion in the underlying criminal case. He cannot attack
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his criminal conviction via this civil suit for damages, whether this case is characterized
as a § 1983 lawsuit or a Bivens action.
Second, even if the Heck doctrine poses no bar to the claims herein (or if
some claims, e.g., those of Sarah McBride,3 are not subject to Heck), many of the claims
run aground, because Plaintiffs seek monetary damages ($15,000,000.00, see Doc. 1, p. 8)
from defendants who are immune from such relief. For starters, Hardimon has named
as Defendants the Assistant United States Attorneys who prosecuted him in the
underlying criminal case, as well as the IRS agents (and agents of other federal
agencies) who investigated and/or testified against him in the criminal case. However,
absolute immunity shields from § 1983 liability any person acting as a witness or as a
prosecutor, when performing their duties in the judicial process. Polzin, 636 F.3d at
838; citing Briscoe v. LaHue, 460 U.S. 325, 329-36 (1983), and Imbler v. Pachtman, 424
U.S. 420-29 (1976).
The same analysis applies to Bivens claims. See, e.g., Cross v. Fiscus, 830
F.2d 755, 756 (7th Cir. 1987)(“When a Bivens action is available, a series of qualified

Indeed, it is a stretch to conclude that the complaint (which rants in the
first person, from the perspective of Dr. Hardimon) presents any claim for
violation of Sarah McBride’s civil rights. It alleges only that her cell phone was
taken from her prior to interrogation (presumably by FBI Agents investigating
the insurance fraud) and that agents took the couple’s minor child, Matthew
Brueggemann” from Dr. Hardimon’s home at 7:30 am on December 17, 2009
without the consent of Sarah McBride or Matthew’s stepfather, Darrell
Brueggemann. The complaint is generally devoid of any independent claim by
Sarah McBride. And comparison of the signatures on it strongly suggests that
Dr. Hardimon signed the complaint for Sarah McBride (see Doc. 1, p. 8). Sarah
McBride did not file an IFP motion (and her signature does not appear on the IFP
motion filed by Hardimon).
3

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and absolute immunities may be set up in defense.”); Anderson v. Creighton, 483 U.S.
635, 637-38 (1987).

Because many of Hardimon’s claims challenge conduct that is

“intimately associated with the judicial phase of the criminal process,” Imbler, 424 U.S.
at 430, those claims would warrant dismissal on immunity grounds.4
Finally, even if no claims were foreclosed by Heck or subject to dismissal
based on immunity, the complaint fails to state a claim upon which relief can be
granted. The same standard applies when screening a complaint under § 1915(e)(2) as
when evaluating a complaint under Federal Rule of Civil Procedure 12(b)(6).

See

Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010). The “complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937, 1949, quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). Here, construing the complaint in the light most
favorable to Plaintiffs, accepting as true all well-pleaded facts, and drawing in Plaintiffs’
favor all possible inferences, see Cole v. Milwaukee Area Technical College, 634 F.3d
901, 903 (7th Cir. 2011), the undersigned Judge concludes that the complaint fails to state
a claim upon which relief can be granted.
4

Other acts alleged by Hardimon against the prosecutors arguably are
shielded by qualified immunity as opposed to absolute immunity. As the
Supreme Court explained in Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993):
“acts undertaken by a prosecutor in preparing for the initiation of judicial
proceedings or for trial, and which occur in the course of his role as an advocate
for the State, are entitled to the protections of absolute immunity. Those acts
must include the professional evaluation of the evidence assembled by the police
and appropriate preparation for its presentation at trial or before a grand jury
after a decision to seek an indictment has been made. On the other hand, as the
function test of Imbler recognizes, … when a prosecutor ‘functions as an
administrator rather than as an officer of the court’ he is entitled only to qualified
immunity.”
7

The complaint alleges in scattershot fashion (via a one-page rambling
narrative) that the “United States Government” and “various special agents” did the
following things (Doc. 1, p. 7):
They blocked traffic in Dr. Hardimon’s neighborhood, showed up
between 7:00 and 8:00 am, and “rushed in” as soon as the door was opened “without
asking!” Various agencies “joined in so they could … get themselves some type of
credit.” When special agents executed a search warrant, they were disruptive, they
moved objects around, they took photos that “would be advantageous to their
argument,” and they irritated Dr. Hardimon’s wife. The agents chose to execute a
search warrant on Dr. Hardimon’s BMW while he was at a local junior college “so he
could be embarrassed and humiliated in front of his colleagues and current students.”
While investigating the health care fraud and interviewing Dr. Hardimon’s former
patients, “the various agents” used abusive language and made disparaging remarks
about Dr. Hardimon, such as “this guy does not need to be around money!” The agents
interviewed persons of low socioeconomic status and persons who lived in
impoverished areas. The agents removed a minor child (Matthew Brueggemann) from
Dr. Hardimon’s home before executing the search warrant on December 17, 2009,
without the consent of his mother, Sarah McBride, or stepfather, Darrell Brueggemann
(and then drove him to school). An I.R.S. agent (Kim Singer) said that Plaintiffs could
not use their cell phones to contact their attorney, and separated Plaintiffs during
interrogation. Special agents told Darrell Brueggemann to pick up his daughter from
school on the day of the December 17th search warrant execution, due to concerns that
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Dr. Hardimon could be angry or aggressive. Darrell Brueggemann (who is not a named
Plaintiff, whose connection is not identified in the complaint, but who appears to be a
spouse or former spouse of Sarah McBride) was “infuriated” that his son Matthew was
at Dr. Hardimon’s house “when the special agents came and served the initial search
warrant and took Matthew to school,” because Brueggemann believed the agents would
wait to serve the warrant after Matthew “had gone to the bus stop!”
The Statement of Claim concludes with these two sentences (Doc. 1, p. 7):
“What the patients do not know is that the insurance companies were being used as the
victim and not each patient themselves. So in the long run, the insurance companies
and the government agents were going around to the patients and getting them to
produce favorable information that would only benefit the insurance companies and
not the individuals of this society!”
Liberally construing the complaint due to Plaintiffs’ pro se status, and
accepting all factual allegations as true, this Court finds that the complaint fails to state
a claim to relief that is plausible on its face. The complaint contains no substantive
allegations against several of the named Defendants, such as Lisa Madigan (Attorney
General of the State of Illinois), “United States Human and Health Services, OIG,”
“United States Department of Labor,” the “National Insurance Crime Bureau,” and
“Blue Cross and Blue Shield Investigators.” The Court cannot discern any claims on
behalf of Sarah Z. McBride (who did not file her own separate IFP motion and may not
have signed the complaint, Doc. 1, p. 8).

9

As noted above, liberal interpretation of the allegations contained in the
disjointed “Statement of Claim” yields the distinct impression that John Hardimon
attacks his conviction in the criminal case by complaining (in this civil case) of conduct
by investigators, prosecutors, and others working for and with the U.S. Attorney’s
Office and Internal Revenue Service all of which was intimately involved with the
criminal judicial process and either subject to immunity principles or barred by the
Heck doctrine.
And the allegations simply do not state a plausible claim that federal
officials (or federal officials conspiring with private individuals) deprived Plaintiffs of a
federally-secured constitutional right. An FBI agent photographing pet stains on a
homeowner’s carpet and moving boxes around while executing a search warrant
violates no right under the United States Constitution (and contravenes no other law,
rule or statute of which the Court is aware). An agent or officer opting to serve a
warrant on a person at his place of business or at a local college where that person
teaches (instead of waiting to get him alone, out of view of colleagues or onlookers)
violates no federally-protected right. Assuming as true and cobbling together all the
disparaging statements Hardimon claims agents made regarding his integrity and
temper, the Court finds no plausible claim for violation of civil rights or other cause of
action. And Hardimon’s views as to who the “real victims” of his insurance scheme are
add nothing, are irrelevant, and do not state a plausible claim for relief in this federal
court.

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Accordingly, the Court DENIES Plaintiffs’ motion for IFP (Doc. 2) and
DISMISSES this action without prejudice, pursuant to 28 U.S.C. 1915(e)(2)(B).
Dismissal RENDERS MOOT the motion for appointment of counsel (Doc. 3). The
Clerk’s Office shall enter judgment accordingly.
IT IS SO ORDERED.
DATED July 12, 2011.
s/ Michael J. Reagan
Michael J. Reagan
United States District Court

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