Beard v. Federal Bureau of Prisons et al

Filing 15

MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge J. Phil Gilbert on 7/25/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LIONEL R. BEARD,
#11819-040,
Plaintiff,
vs.
FEDERAL BUREAU OF PRISONS,
UNITED STATES OF AMERICA,
ASSISTANT MANAGER HUMPHRIES,
and FRED FALMIER,
Defendants.

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Case No. 16-cv-01209-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is now before the Court for consideration of the First Amended Complaint
(Docs. 12, 12-1) filed by Plaintiff Lionel Beard, an inmate who is currently incarcerated at the
Federal Correctional Institution in Greenville, Illinois (FCI-Greenville). Plaintiff claims that he
was verbally and physically assaulted by a UNICOR factory supervisor (Fred Falmier) at the
United States Penitentiary in Marion, Illinois (USP-Marion), on August 11, 2015. (Doc. 12-1).
An assistant manager (Humphries) who was present during the incident did not intervene or
otherwise attempt to stop the assault. (Doc. 12-1, pp. 3-4). When Plaintiff filed a formal
complaint, he was transferred to USP-Marion’s Special Housing Unit (SHU), where he remained
for at least five months while the matter was investigated. (Doc. 12-1, p. 4). Before he was ever
interviewed, Plaintiff was transferred to FCI-Greenville. Id. He now seeks monetary relief for
the negligence and/or deliberate indifference of these federal officials under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-80. (Doc. 12-1, p. 7).

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This case is now before the Court for preliminary review of the First Amended Complaint
pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers to a claim
that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th
Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line
between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations are to
be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.
2009). The First Amended Complaint survives screening under this standard.
First Amended Complaint
During his incarceration at USP-Marion, Plaintiff claims that he was verbally and
physically assaulted while working for UNICOR, a government corporation within the Federal
Bureau of Prisons (“BOP”) that offers industrial work programs and training opportunities for
federal prisoners. (Doc. 12-1). On August 11, 2015, the employee supervisor, Fred Falmier,

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used racial slurs while “violently shoving” Plaintiff. (Doc. 12-1, p. 3). He suffered bruising as a
result of the incident. (Doc. 12-1, pp. 3-4).
Assistant Manager Humphries “witnessed the exchange.” (Doc. 12-1, p. 4). However,
Humphries did not intervene to stop the assault or assist Plaintiff in filing a complaint against
Falmier. Id. Plaintiff asked Humphries to review video footage of the incident, but it is not clear
whether Humphries did so. Id.
When Plaintiff filed a formal complaint on his own, he was transferred into USPMarion’s SHU on August 13, 2015. (Doc. 12-1, p. 4). He remained there while the matter was
under investigation. Id. On September 24, 2015, a Special Investigative Supervisor, named
Lieutenant Malcolm,1 informed Plaintiff that the institutional level investigation was complete,
and the matter had been referred to the Office of Inspector General. Id. After five months,
Lieutenant Malcolm informed Plaintiff that the case was referred back to the institutional level
for review. Id. Plaintiff repeatedly asked when he would be interviewed, but he never was. Id.
Eventually, Plaintiff was transferred to FCI-Greenville “for his own protection.” Id. He now
claims that prison officials failed to protect him from a substantial risk of serious harm in
violation of the Eighth Amendment and breached the duty of care they owed to him under
Illinois negligence law. (Doc. 12-1, p. 5).
Discussion

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Malcolm is not named as a defendant in the First Amended Complaint, and no claims are asserted
against this individual. When parties are not listed in the caption, this Court will not treat them as
defendants, and any claims against them should be considered dismissed without prejudice. See FED. R.
CIV. P. 10(a) (noting that the title of the complaint “must name all the parties”); Myles v. United States,
416 F.3d 551, 551-52 (7th Cir. 2005) (holding that to be properly considered a party, a defendant must be
“specif[ied] in the caption”).
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To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court has
re-organized the claims in the pro se First Amended Complaint into the following counts:
Count 1 -

Falmier exhibited deliberate indifference toward Plaintiff, in
violation of the Eighth Amendment and under Bivens, when he/she
verbally and physically assaulted Plaintiff on August 11, 2015.

Count 2 -

Humphries exhibited deliberate indifference toward Plaintiff, in
violation of the Eighth Amendment and under Bivens, when he/she
failed to intervene and stop the assault or assist Plaintiff in filing a
complaint on August 11, 2015.

Count 3 -

The United States is liable under the FTCA for Falmier’s assault of
Plaintiff and Humphries’ failure to intervene and stop the assault
on August 11, 2015.

The parties and the Court will continue using these designations in all future pleadings and
orders, unless otherwise directed by a judicial officer of this Court. Plaintiff has abandoned all
other claims identified in this Court’s original screening Order (Counts 3, 4, 5, and 6 in
Document 7) by omitting them from the First Amended Complaint. (Doc. 7)
Discussion
A federal prisoner who seeks relief for the misconduct of federal agents may obtain
monetary relief in federal court in three ways. He may bring a suit against the United States
under the FTCA for conduct of federal agents that is considered tortious under state law. Sisk v.
United States, 756 F.2d 497, 500 n. 4 (7th Cir. 1985) (citing 28 U.S.C. §§ 1346(6), 2680). He
may sue individual agents for violating his constitutional rights under the theory set forth in
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Id. Alternatively, he may
pursue both types of claims in the same suit. See, e.g., Ting v. United States, 927 F.2d 1504,
1513 n. 10 (9th Cir. 1991).

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Plaintiff’s chosen path is unclear. In his original Complaint, Plaintiff pursued monetary
relief against individual federal agents and federal agencies under Bivens. (Doc. 1). In the First
Amended Complaint, he pursues monetary relief against the United States, BOP, Falmier, and
Humphries under the FTCA. (Docs. 12, 12-1). Construing this pro se prisoner’s amended
complaint liberally, the Court finds that it states viable claims under both. Haines v. Kerner, 404
U.S. 519, 520 (1972).
However, the Bivens claims in Counts 1 and 2 may only proceed against the individual
federal agent(s) who allegedly caused or participated in each constitutional violation. Kaba v.
Stepp, 458 F.3d 678, 687 (7th Cir. 2006) (holding that “[a] Bivens action may not be brought
against the United States or a federal agency”). “[T]he point of Bivens [i]s to establish an action
against the employee to avoid the sovereign immunity that would block an action against the
United States.” See Sterling v. United States, 85 F.3d 1225, 1228-29 (7th Cir. 1996); F.D.I.C. v.
Meyer, 510 U.S. 471, 484-86 (1994); Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003).
This Court already discussed the legal framework that is applicable to both claims in the original
screening Order. (Doc. 7, pp. 4-7). The First Amended Complaint articulates a viable Eighth
Amendment claim under this framework against Defendant Falmier in Count 1 and against
Defendant Humphries in Count 2. These claims shall be dismissed with prejudice against all
other defendants.
In contrast, the FTCA claim in Count 3 may only proceed against the United States.
Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008) (“only proper defendant in an FTCA action
is the United States”); Hughes v. United States, 701 F.2d 56, 58 (7th Cir. 1982). See 28 U.S.C.
§ 2679(b). The FTCA allows “civil actions on claims against the United States, for money
damages . . . for . . . personal injury or death caused by the negligent or wrongful act or omission

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of any employee of the Government while acting within the scope of his office or employment.”
28 U.S.C. § 1346(b)(1). FTCA claims are governed by the law of the state where the tort
occurred, which in this case is Illinois.

Parrott v. United States, 536 F.3d 629, 637

(7th Cir. 2008). See also Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003).
The allegations suggest that Falmier and/or Humphries were negligent under Illinois law.
Thompson v. Gordon, 948 N.E.2d 39, 45 (Ill. 2011) (citing Iseberg v. Gross, 879 N.E.2d 278
(2007) (Illinois negligence claims). Accordingly, the FTCA claim in Count 3 shall proceed
against the United States on this basis.
Whether allegations of an assault provide an independent basis for bringing the FTCA
claim is a separate matter altogether. The FTCA provides a limited waiver of the United States’
sovereign immunity. Millbrook v. United States, 133 S. Ct. 1441 (2013). Exceptions to this
waiver appear in 28 U.S.C. § 2680 and include “[a]ny claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 2680(h).

Section

2680(h) has been referred to as the “intentional tort exception.” Id. at 1443. However, Congress
carved out an “exception to § 2680(h)’s preservation of the United States’ sovereign immunity
for intentional torts by adding a proviso covering claims that arise out of the wrongful conduct of
law enforcement officers” (i.e., referred to as the “law enforcement proviso”). Id. (citation
omitted). The United States Supreme Court has held that the waiver effected by the law
enforcement proviso “extends to acts or omissions of law enforcement officers that arise within
the scope of their employment, regardless of whether the officers are engaged in investigative or
law enforcement activity, or are executing a search, seizing evidence, or making an arrest.” Id.
at 1446. Whether the assault allegedly perpetrated by Falmier fits into the intentional tort

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exception under § 2680, and thus precludes an FTCA claim based on the assault, or fits within
the law enforcement proviso as interpreted in Millbrook, and thus allows a claim arising from the
assault, remains to be seen. At this stage, the Court will allow the FTCA claim to proceed
against the United States based on the alleged negligence and assault of Plaintiff by the UNICOR
staff on August 11, 2015. Count 3 shall be dismissed with prejudice against all other defendants.
Pending Motion
Plaintiff’s Motion for Status (Doc. 14) is DENIED as MOOT. This Order reflects the
current status of this case.
Disposition
IT IS HEREBY ORDERED that COUNT 1 shall receive further review against
Defendant FALMIER; the claim is hereby DISMISSED with prejudice against Defendants
UNITED

STATES

OF

AMERICA,

FEDERAL

BUREAU

OF

PRISONS,

and

HUMPHRIES for failure to state a claim upon which relief may be granted.
IT IS ORDERED that COUNT 2 shall receive further review against Defendant
HUMPHRIES; the claim is hereby DISMISSED with prejudice against Defendants UNITED
STATES OF AMERICA, FEDERAL BUREAU OF PRISONS, and FALMIER for failure to
state a claim upon which relief may be granted.
IT IS ORDERED that COUNT 3 shall receive further review against Defendant
UNITED STATES OF AMERICA; the claim is hereby DISMISSED with prejudice against
Defendants FEDERAL BUREAU OF PRISONS, FALMIER, and HUMPHRIES for failure
to state a claim upon which relief may be granted.

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IT IS ORDERED that Defendant FEDERAL BUREAU OF PRISONS is
DISMISSED with prejudice because the First Amended Complaint fails to state a claim for
relief against this defendant. The Clerk is directed to TERMINATE this party in CM/ECF.
IT IS ORDERED that with regard to COUNT 3, the Clerk of Court is DIRECTED to
complete, on Plaintiff’s behalf, a summons for service of process on Defendant UNITED
STATES OF AMERICA; the Clerk shall issue the completed summons. Further, with regard to
COUNTS 1 and 2, the Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a
summons and form USM-285 for service of process on Defendant FALMIER (Count 1 only)
and Defendant HUMPHRIES (Count 2 only); the Clerk shall issue the completed summons.
The United States Marshal SHALL serve Defendants FALMIER and HUMPHRIES pursuant
to Rule 4(e) of the Federal Rules of Civil Procedure.2 All costs of service shall be advanced by
the United States, and the Clerk shall provide all necessary materials and copies to the
United States Marshals Service.
In addition, pursuant to Federal Rule of Civil Procedure 4(i), the Clerk shall:
(1) personally deliver to or send by registered or certified mail addressed to the civil-process
clerk at the office of the United States Attorney for the Southern District of Illinois a copy of the
summons, the First Amended Complaint (Docs. 12, 12-1), and this Memorandum and Order; and
(2) send by registered or certified mail to the Attorney General of the United States at

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Rule 4(e) provides, “an individual – other than a minor, an incompetent person, or a person whose
waiver has been filed – may be served in a judicial district of the United States by: (1) following state
law for serving a summons in an action brought in courts of general jurisdiction in the state where the
district court is located or where service is made; or (2) doing any of the following: (A) delivering a copy
of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the
individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides
there; or (C) delivering a copy of each to an agent authorized by appointment or law to receive service of
process.”
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Washington, D.C., a copy of the summons, the First Amended Complaint (Docs. 12, 12-1), and
this Memorandum and Order.
It is FURTHER ORDERED that Plaintiff shall serve upon the United States Attorney
for the Southern District of Illinois a copy of every pleading or other document submitted for
consideration by this Court. Plaintiff shall include with the original paper to be filed a certificate
stating the date that a true and correct copy of the document was mailed to the United States
Attorney. Any paper received by a district judge or a magistrate judge which has not been filed
with the Clerk or which fails to include a certificate of service will be disregarded by the Court.
IT IS ORDERED that, if the Defendant cannot be found at the address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if
not known, the Defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file,
nor disclosed by the Clerk.
IT IS ORDERED that Plaintiff shall serve upon Defendant (or upon defense counsel
once an appearance is entered), a copy of every further pleading or other document submitted for
consideration by the Court. Plaintiff shall include with the original paper to be filed a certificate
stating the date on which a true and correct copy of any document was served on Defendant or
counsel. Any paper received by a district judge or magistrate judge that has not been filed with
the Clerk or that fails to include a certificate of service will be disregarded by the Court.
IT IS ORDERED that pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a
United States Magistrate Judge for further pre-trial proceedings.

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IT IS FURTHER ORDERED that this entire matter is REFERRED to a United States
Magistrate Judge for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. §
636(c), should all the parties consent to such a referral.
IT IS ORDERED that if judgment is rendered against Plaintiff, and the judgment
includes the payment of costs under § 1915, Plaintiff will be required to pay the full amount of
the costs, even though his application to proceed in forma pauperis was granted. See 28 U.S.C.
§ 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give
security for the same, the applicant and his or her attorney were deemed to have entered into a
stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court,
who shall pay therefrom all unpaid costs taxed against Plaintiff and remit the balance to Plaintiff.
Local Rule 3.1(c)(1)
Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of Court
and each opposing party informed of any change in his address; the Court will not independently
investigate his whereabouts. This shall be done in writing and not later than 7 days after a
transfer or other change in address occurs. Failure to comply with this order will cause a delay
in the transmission of court documents and may result in dismissal of this action for want of
prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: July 25, 2017

s/J. Phil Gilbert
District Judge
United States District Court
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