Gregory v. Chamness et al

Filing 37

ORDER DISMISSING Second Amended Complaint 32 and Case without prejudice for lack of jurisdiction, and DENYING all pending motions [33-36] as Moot. Judgment shall enter accordingly. Signed by Chief Judge Michael J. Reagan on 11/17/2014. (mmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHNNY BRETT GREGORY,
No. 57012-019,
Plaintiff,
vs.
TONY CHAMNESS,
JEFF BANEY,
WEASEL BRADLEY,
WENDY J. ROAL,
AMBER L. NELSON,
HARRELL WATTS, and
HARRY LAPPIN,
Defendants.

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Case No. 13-cv-01124-MJR

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
Before the Court are Plaintiff Johnny Brett Gregory’s Second Amended Complaint (Doc.
32) and a variety of related motions (Docs. 34-36).
Procedural History
Plaintiff Gregory is an inmate in the custody of the United States Bureau of Prisons,
housed at the Englewood Federal Correctional Institution in Littleton, Colorado. On October 31,
2013, Plaintiff initiated this civil rights complaint pursuant to Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971), regarding incidents that occurred while he was housed at the U.S.
Penitentiary in Marion, Illinois.
The original complaint underwent preliminary review pursuant to 28 U.S.C. § 1915A
(Doc. 11). Of the six claims presented, two were dismissed with prejudice, and four were
dismissed without prejudice—meaning that the Court perceived that they could be repleaded to
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state colorable claims. Also, listed plaintiff FloridaUCC, Inc., was dismissed. Plaintiff was
given an opportunity to file an amended complaint.

Plaintiff filed a motion seeking

reconsideration of the order of dismissal (Docs. 14) and an amended complaint (Doc. 15).
Plaintiff also simultaneously filed an interlocutory appeal (Doc. 16). The Court denied the
motion for reconsideration (Doc. 19), allowing the appeal to move forward. The appeal was
dismissed when Plaintiff failed to pay the docketing fee (Doc. 26).
The Amended Complaint (Doc. 15) was dismissed without prejudice because Plaintiff
had attempted to add state law claims by interlineation, in piecemeal fashion, in violation of
Federal Rule of Civil Procedure 8 and Local Rule 15.1 (Doc. 31). Plaintiff granted leave to file a
second amended complaint.
Plaintiff has now filed another amended complaint (Doc. 32), as well as:
● Ex Parte Motion for Reconsideration (Doc. 33), seeking to have the Court
revisit: (1) his motion for service of summons and the complaint at
government expense (Doc. 12), which was denied as premature, because
service of a viable complaint would be at government of expense pursuant to
28 U.S.C. § 1915(d) (see Doc. 31); (2) his motion to stay appeal (Doc. 24),
which was dismissed as moot once the appeal was dismissed (see Doc. 31);
and (3) his motion for discovery (Doc. 30, which was denied as premature
(see Doc. 31).
● Ex Parte Motion and Memorandum in Support of Second Amended
Complaint (Doc. 34), emphasizing that Plaintiff’s Second Amended
Complaint (Doc. 32) abandons the Bivens claims previously asserted, and
presents only state law claims.
● Ex Parte & Sua Sponte Motion for Jurisdictional Challenge (Doc. 35), which
merely asserts that, pursuant to 28 U.S.C. § 1367, the Court can exercise
supplemental jurisdiction over Plaintiff’s state law claims.
● Ex Parte Motion for Partial Summary Judgment (Doc. 36), asserting that there
are no factual disputes to preclude judgment in his favor and the award of $8
million in damages.

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The Second Amended Complaint (Doc. 32)
Plaintiff’s second amended complaint (Doc. 32) must undergo preliminary review
pursuant to 18 U.S.C. § 1915A. Under Section 1915A, the Court is required to promptly screen
prisoner complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is
required to dismiss any portion of the complaint that is legally frivolous, malicious, fails to state
a claim upon which relief may be granted, or asks for money damages from a defendant who by
law is immune from such relief. 28 U.S.C. § 1915A(b).
The Second Amended Complaint (Doc. 32), along with Plaintiff’s Ex Parte Motion and
Memorandum in Support of Second Amended Complaint (Doc. 34), and Ex Parte & Sua Sponte
Motion for Jurisdictional Challenge (Doc. 35), make clear that Plaintiff Gregory has abandoned
the constitutional claims his original complaint has asserted pursuant to Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971). Rather, Plaintiff seeks to pursue only state law claims for
intentional infliction of emotional distress and conspiracy, based upon the same basic factual
scenario that underpinned his Bivens claims.1
Plaintiff relies upon 28 U.S.C. § 1367, which permits a federal district court to exert
supplemental jurisdiction over state law claims that are “so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy under Article III of
the United States Constitution.” That is the very reason why Plaintiff was granted leave to file a
second amended complaint to add his state law claims to his potential Bivens claims. However,
by abandoning his Bivens claims, Plaintiff has removed the basis for “original jurisdiction” over
1

Even assuming diversity jurisdiction, and at the risk of offering an advisory opinion, the Court
observes that the Federal Tort Claim Act, 28 U.S.C. §§ 2671-2680, is the exclusive remedy for
tort claims against government employees acting within the scope of their employment, as is
apparently asserted in the Second Amended Complaint (see Doc. 32, p. 6 (“ALL ACTS
CARRIED OUT UNDER COLOR OF FEDERAL LAW”)). See also Couch v. United States,
694 F.3d 852, 856 (7th Cir. 2012); Alexander v. United States, 721 F.3d 418, 420 (7th Cir. 2013).
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this action under Article III. Consequently, the Court cannot exercise supplemental jurisdiction
over Plaintiff’s state law claims and the Second Amended Complaint (Doc. 32) must be
dismissed. Dismissal shall be without prejudice for lack of jurisdiction.
This situation is unlike when a court dismisses all claims over which it had original
jurisdiction and, under certain circumstances, may retain supplemental jurisdiction over
remaining state law claims in a single complaint. See 28 U.S.C. § 1367(c); Sharp Electronics
Corp. v. Metropolitan Life Insurance Co., 578 F.3d 505, 524-15 (7th Cir. 2009). Here, Plaintiff
abandoned—voluntarily dismissed—all his potential federal claims; the Second Amended
Complaint is based solely upon state law claims. When Plaintiff’s Bivens claims in the original
complaint were dismissed without prejudice, the Court provided sufficient information to allow
Plaintiff to re-plead viable claims (see Doc. 11), but Plaintiff opted to abandon those claims.
Because Plaintiff has already had three chances to file a viable complaint, and because he
elected to voluntarily dismiss his potential federal claims, Plaintiff will not be given an
opportunity to file a third amended complaint. 2
This case will be closed and Plaintiff’s pending motions will be denied as moot. This
dismissal shall not count as one of Plaintiff’s allotted “strikes” under 28 U.S.C. § 1915(g).

2

The fact that Plaintiff is not being afforded another opportunity to amend his pleading in this
case should not surprise Plaintiff. The Court previously warned Plaintiff that if the (second)
amended complaint failed to state a claim, this action would be dismissed with prejudice and
judgment would be entered accordingly, closing this case (see Doc. 31, p. 4). The Court merely
failed to anticipate that Plaintiff would take such an unexpected new tack, abandoning the basis
for federal jurisdiction.
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Disposition
IT IS HEREBY ORDERED that, for the reasons stated, the Second Amended
Complaint (Doc. 32) is DISMISSED without prejudice for lack of jurisdiction, and all
pending motions (Docs. 33-36) are DENIED AS MOOT. Judgment will enter accordingly.
IT IS SO ORDERED.
DATED: November 17, 2014
s/ Michael J. Reagan
MICHAEL J. REAGAN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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