Kidd v. Federal Bureau of Prisons

Filing 11

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the First Amended Complaint (Doc. 9) is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. This includes the claim in Count 1 under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80, and any related claim Plaintiff intends to bring pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). IT IS FURTHER ORDERED that all DEFENDANTS are DISMISSED without prejudice, based on Plaintiffs failure to state any claim for relief against them. Plaintiff is GRANTED leave to file his Second Amended Complaint on or before September 15, 2017. Signed by Judge J. Phil Gilbert on 8/17/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHAUN STEVEN KIDD,
#43108-074,
Plaintiff,
vs.
MRS. K. HILL,
MR. G. BURGESS,
MR. R. BASKERVILLE,
and COUNTER TERRORISM UNIT,
Defendants.

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Case No. 17−cv–00326−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is now before the Court for review of the First Amended Complaint filed by
Plaintiff Shaun Kidd on June 2, 2017. (Doc. 9). Plaintiff is an inmate at the United States
Penitentiary located in Marion, Illinois (“USP - Marion”). He brings this action pursuant to the
Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80, to challenge the conditions of his
confinement. (Doc. 9, pp. 5; Doc. 1-1, pp. 1-14). He names Mrs. K. Hill (intel research
specialist), Mr. G. Burgess (case manager), Mr. R. Baskerville (unit manager and unit team), and
the Counter Terrorism Unit as defendants. (Doc. 9, p. 1). Plaintiff seeks monetary damages and
injunctive relief against them. (Doc. 9, p. 6).
This case is now before the Court for a preliminary review of the First Amended
Complaint (Doc. 9) 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–
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(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 of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009). The First Amended Complaint does not survive screening and
shall be dismissed.
First Amended Complaint
The First Amended Complaint includes a one-page statement of claim that consists of
incoherent ramblings. (Doc. 9, p. 5). Plaintiff also mentions “deplorable ventilation systems” at
the prison. Id. He mentions his ADHD, mental anguish, and physical hardship. Id. Plaintiff
also asserts claims of “intentional negligence or deliberate indifference” against the parties. Id.
Among the exhibits are formal written complaints about Plaintiff’s regular exposure to
feces, urine, saliva, and bird feathers. (Doc. 9-1, p. 1). He complains about the ventilation.
(Doc. 9-1, pp. 1, 7, 12-14). In addition, Plaintiff challenges the method of monitoring inmate
communications at the prison. (Doc. 9-1, pp. 3-5, 9, 13).
In connection with these complaints, Plaintiff names several prison officials and the
Counter Terrorism Unit. (Doc. 9, p. 1). He asserts claims against them under the Federal Tort
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Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-80. Plaintiff seeks monetary damages and
injunctive relief, including a prison transfer. (Doc. 9, p. 6).
Discussion
The First Amended Complaint addresses a single claim (Count 1) against the defendants
under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-80, for exposing Plaintiff
to unconstitutional conditions of confinement at USP - Marion. Like the Complaint, it does not
survive review under § 1915A.

Because Plaintiff apparently ignored this Court’s Order

Dismissing Complaint (Doc. 7), the First Amended Complaint must be dismissed for many of the
same reasons that his Complaint was also dismissed.
The FTCA authorizes “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
of any employee of the Government while acting within the scope of his office or employment.”
28 U.S.C. § 1346(b)(1) (emphasis added). However, Plaintiff cannot bring his FTCA claim
against federal officials or agencies. As this Court already explained in the Order Dismissing
Complaint, the “only proper defendant in an FTCA action is the United States.” Jackson v.
Kotter, 541 F.3d 688, 693 (7th Cir. 2008); Hughes v. United States, 701 F.2d 56, 58 (7th Cir.
1982). See 28 U.S.C. § 2679(b). The United States is not named as a defendant.
If Plaintiff intended to sue individual federal agents for violating his constitutional rights,
he should have indicated that he was bringing the action pursuant to 28 U.S.C. § 1331 and Bivens
v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), somewhere on the First Amended
Complaint. He did not. Plaintiff might have also made this clear by bringing a constitutional
claim against the defendants, but he did not mention any constitutional rights that were violated.
His reference to “deliberate indifference” suggests that he intended to pursue an Eighth

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Amendment claim for unconstitutional conditions of confinement against the individual federal
agents pursuant to Bivens. This Order does not preclude him from doing so.
Plaintiff’s statement of claim is otherwise incoherent. His allegations are nonsensical.
They lack substance. Even when he mentions conditions of his confinement, Plaintiff offers no
context for them, such as where he encountered the conditions, when he endured them, how
frequently he did so, or which officials he asked to address them. Page 5 of the standard civil
rights complaint form instructs plaintiffs to briefly set forth “when, where, how, and by whom
you feel your . . . rights were violated.” (Doc. 9, p. 5). Plaintiff offers virtually none of this
information in his statement of claim.
The FTCA claim in Count 1 and any potential claims under Bivens should be considered
dismissed without prejudice because the First Amended Complaint states no claim upon which
relief may be granted. Plaintiff shall have one final opportunity to re-plead his claims in a
Second Amended Complaint, according to the instructions and deadline set forth in the below
disposition.
Pending Motion
Plaintiff’s Motion for Leave to Proceed in forma pauperis (Doc. 4) shall be addressed in
a separate court order.
Disposition
IT IS HEREBY ORDERED that the First Amended Complaint (Doc. 9) is
DISMISSED without prejudice for failure to state a claim upon which relief may be granted.
This includes the claim in Count 1 under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 267180, and any related claim Plaintiff intends to bring pursuant to Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388 (1971).

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IT IS FURTHER ORDERED that all DEFENDANTS are DISMISSED without
prejudice, based on Plaintiff’s failure to state any claim for relief against them.
Plaintiff is GRANTED leave to file his “Second Amended Complaint” on or before
September 15, 2017. Should Plaintiff fail to file his Second Amended Complaint within the
allotted time or consistent with the instructions set forth in this Order, the action shall be
dismissed with prejudice. FED. R. CIV. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d
1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915A.
Further, the dismissal shall count as one of Plaintiff’s allotted “strikes” under the provisions of
28 U.S.C. § 1915(g).
Should Plaintiff decide to file another amended complaint, it is strongly recommended
that he use the forms designed for use in this District for such actions. He should label the form,
“Second Amended Complaint,” and he should use the case number for this action (Case No. 17cv-00326-JPG). He should refer to the constitutional or statutory ground(s) for relief. Plaintiff
should name the proper defendant(s). The Second Amended Complaint shall present each claim
in a separate count, and each count shall specify, by name, each defendant alleged to be liable
under the count, as well as the actions alleged to have been taken by that Defendant. Plaintiff
should attempt to include the facts of his case in chronological order, inserting each Defendant’s
name where necessary to identify the actors. Plaintiff should refrain from filing unnecessary
exhibits. He should include only related claims in his new complaint. Claims found to be
unrelated to Count 1 will be severed into new cases, new case numbers will be assigned, and
additional filing fees will be assessed.
To enable Plaintiff to comply with this order, the Clerk is DIRECTED to mail Plaintiff a
blank complaint form.

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An amended complaint supersedes and replaces the original complaint, rendering the
original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1
(7th Cir. 2004). The Court will not accept piecemeal amendments to the original complaint.
Thus, the First Amended Complaint must stand on its own, without reference to any previous
pleading, and Plaintiff must re-file any exhibits he wishes the Court to consider along with the
First Amended Complaint. The First Amended Complaint is also subject to review pursuant to
28 U.S.C. § 1915A.
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee of $400.001 remains due and payable,
regardless of whether Plaintiff elects to file a second amended complaint.

See 28 U.S.C.

§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Finally, 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: August 17, 2017
s/J. Phil Gilbert
United States District Judge

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Effective May 1, 2013, the filing fee for a civil case was increased to $400.00, by the addition of a new
$50.00 administrative fee for filing a civil action, suit, or proceeding in a district court. See Judicial
Conference Schedule of Fees - District Court Miscellaneous Fee Schedule, 28 U.S.C. § 1914, No. 14.
A litigant who is granted IFP status, however, is exempt from paying the new $50.00 fee and must pay a
total fee of $350.00.

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