Kidd v. Federal Bureau of Prisons
ORDER DISMISSING CASE with prejudice for failure to state a claim upon which relief may be granted. This dismissal counts as a strike under 28 U.S.C. § 1915(g). Signed by Judge J. Phil Gilbert on 11/7/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHAUN STEVEN KIDD,
MRS. K. HILL,
MR. G. BURGESS,
MR. R. BASKERVILLE,
and COUNTER TERRORISM UNIT,
Case No. 17−cv–00326−JPG
MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is once again before the Court for preliminary review of the amended
complaint filed by Plaintiff Shaun Kidd on August 31, 2014. (Doc. 14). Plaintiff has already
filed two versions of his complaint against individual federal officials to challenge the conditions
of his confinement at the United States Penitentiary located in Marion, Illinois (“USP-Marion”),
under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-80. (Docs. 1, 9).
Neither the Complaint (Doc. 1) nor the Amended Complaint (Doc. 9) survived preliminary
review under 28 U.S.C. § 1915A. (Docs. 7, 11). Both were virtually incomprehensible. (Doc.
1, 9). They also clearly failed to state a claim under the FTCA. Id.
Plaintiff was granted leave to file a Second Amended Complaint on or before September
15, 2017. (Doc. 11, p. 5). The Court set forth specific instructions for properly amending the
complaint. (Doc. 11). Plaintiff was clearly warned that failure to comply with these instructions
or the filing deadline would result in dismissal of the action with prejudice and a “strike.” (Doc.
11, pp. 4-5) (citing FED. R. CIV. P. 41(b)).
On August 31, 2017, Plaintiff filed a document that was labeled “Second Amended
Complaint.” (Doc. 14). Around the same time, he also filed several other related documents,
including a Motion to Supplement First Amended Complaint filed August 23, 2017 (Doc. 12);
Motion for Order to Compel Defendants Per Prima Facie Evidence filed August 31, 2017 (Doc.
13); Motion for Supplement to Second Amended Complaint filed October 2, 2017 (Doc. 17);
Motion to Amend the Complaint Pursuant to Fed. R. Civ. P. 15 filed October 2, 2017 (Doc. 18);
Proposed Third Amended Complaint filed October 2, 2017; Motion for Supplement Per Civil
Rights Violations filed October 11, 2017 (Doc. 19).
The Court is left to figure out which of these documents was intended to serve as
Plaintiff’s operative amended complaint. It declines to do so. The Court has repeatedly stated
that it “will not accept piecemeal amendments to the original complaint. Thus, the . . . Amended
Complaint must stand on its own, without reference to any previous pleading. . . .” (Doc. 7, p. 8;
Doc. 11, p. 6). Plaintiff disregarded this instruction when he prepared and filed numerous
supplements, addendums, and replacements for his Second Amended Complaint. (Docs. 7, 11,
12-13, 17-19). All of the proposed supplements, addendums, and motions to amend shall be
denied. (Docs. 12-13, 17, 19).
The Court will treat the Second Amended Complaint filed on August 31, 2017, as the
operative complaint in this case. (Doc. 14). It is subject to preliminary review pursuant to
28 U.S.C. § 1915A. Under Section 1915A, the Court is required to dismiss any portion of the
pleading 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 does not survive preliminary review
under this standard.
Merits Review Under 28 U.S.C. § 1915A
In it, Plaintiff abandons his FTCA claims and instead pursues relief against individual
federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). The Court
did not prohibit him from taking this approach. (Doc. 7, 11). Beyond recasting this case as a
Bivens action, however, Plaintiff offers no coherent allegations in support of his claims. (Doc.
14, p. 5). The statement of claim states, in its entirety:
Per the aforemention documents in this instant matter. Avered it’s evident that
the matters in question which can’t be skirted around. Have fallen into a
reluctance aspect. These “insensible” matters are those of [exigency] aspects. As
the Defendants have placed their position to become more oppressive upon being
placed on NOTICE of said deplorable matters. It’s now evident that todays claim
holds fruits of averment that they hold no true interest as to the
CONSTITUTIONAL Rights that Myself or others are still akin to have despite
ending up on the wrong side of the Law per’se. The Health an Safety aspects in
question today are an will continue to impede upon my respirator an safe keepings
as long as these matters are being secluded from correction as well as the
retaliation aspects as I try to seek out-side agencies due to the means of exposition
that I’m trying to do. These blind spots align with the deplorable ventilation
systems are ones that Myself or Anyone else can only PRAY that said
accumulations in question today remain less Health or Safety position. Despite
any sign now there can be farther damages attached that are (un-noticed) at this
time. Adding with the already ADHD that I have these areas noted today have
made such Mental Anguish even more at high-stake along with the Physical hardship of having to endure the Travesty as I am. These part(ies) upon their
NOTICES via individual times as well as in whole. Have willfully “brutalized”
Myself to stupendous exacerbate per “intellectual negligence or deliberate
indifference” which can cause harm to present an future Health aspects etc, . .
Such Civil Rights Violations named today per 28 U.S.C. § 1331. As within the
Bivens v. Six Unknown Fed. Narcotics Agencts, 403 U.S. 388 (1971) is indeed
proper per the Constitutional Rights in question being held in question today. . . .
(Doc. 14, p. 5). The Court would be hard-pressed to pinpoint a single coherent sentence in the
above statement of claim. Words and phrases sprinkled throughout the document again suggest
that Plaintiff takes issue with the conditions of his confinement.
To plead an Eighth Amendment claim for unconstitutional conditions of confinement, an
inmate need only allege that prison officials knowingly denied him “the minimal civilized
measure of life’s necessities.” Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999). These
necessities include adequate shelter, clothing, and hygiene items, among other things. Gillis v.
Litscher, 468 F.3d 488, 493 (7th Cir. 2006). Plaintiff must also demonstrate that federal officials
exhibited deliberate indifference to his health or safety. Ziglar v. Abbasi, -- U.S. --, 137 S. Ct.
1843, 1879 (June 19, 2017) (citing Farmer v. Brennan, 511 U.S. 825, 830, 834 (1994)). Given
the above allegations, the Court is unable to determine whether the conditions at USP-Marion
were objectively serious or find any suggestion that a defendant responded to the conditions with
deliberate indifference. (Doc. 14, p. 5). Simply put, the Court can discern no basis for a
constitutional claim under the Eighth Amendment and Bivens against any defendant.
Second Amended Complaint fails to state a claim upon which relief may be granted and is
therefore subject to dismissal under 28 U.S.C. § 1915A and the assessment of a “strike” under
28 U.S.C. § 1915(g).
IT IS HEREBY ORDERED that the Second Amended Complaint (Doc. 14) and this
action, which was brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80,
and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), are DISMISSED with
prejudice for failure to state a claim upon which relief may be granted. Given that the Court has
already screened three complaints filed by Plaintiff (Docs. 1, 9, 14), the Court finds that further
amendment is futile. Tate v. SCR Med. Transp., 809 F.3d 343, 346 (7th Cir. 2015). This
dismissal counts as a “strike” under 28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED that all pending motions (Docs. 12, 13, 17, 18, 19, and
21), each of which seeks to supplement or amend a version of the complaint, are DENIED.
If Plaintiff wishes to appeal this dismissal, his Notice of Appeal must be filed with this
Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A Motion for
Leave to Appeal In Forma Pauperis should set forth the issues Plaintiff plans to present on
appeal. See FED. R. APP. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for
the $505.00 appellate filing fee irrespective of the outcome of the appeal. See FED. R. APP. P.
3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008);
Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999). Moreover, if the appeal is found to be
nonmeritorious, Plaintiff may also incur a “strike.” A proper and timely motion filed pursuant to
Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline. FED. R. APP. P.
4(a)(4). A Rule 59(e) motion must be filed no more than twenty-eight (28) days after the entry
of the judgment, and this 28-day deadline cannot be extended. However, a Rule 60(b) motion
for relief from a final judgment, order, or proceeding does not toll the deadline for an appeal.
The Clerk shall CLOSE THIS CASE and enter judgment accordingly.
IT IS SO ORDERED.
DATED: November 7, 2017
s/J. Phil Gilbert
United States District Court
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