Kidd v. Federal Bureau of Prisons

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Complaint (Doc. 1) 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.  7; 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). Plaintiff is GRANTED leave to file his First Amended Complaint on or before June 6, 2017. Should Plaintiff fail to file his First Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, the action shall be dismissed with prejudice. (Amended Pleadings due by 6/6/2017.) Signed by Judge J. Phil Gilbert on 5/5/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHAUN STEVEN KIDD,
#43108-074,

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Plaintiff,
vs.
FEDERAL BUREAU OF PRISONS,
Defendant.

Case No. 17 cv–00326 JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Shaun Kidd, an inmate who is currently incarcerated at the United States
Penitentiary located in Marion, Illinois (“USP-Marion”), brings this action against the Federal
Bureau of Prisons pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346, 2671-80. Plaintiff
filed a “Bill of Complaint for Eighth Amendment Violations,” in which he complains of
unconstitutional conditions of confinement at USP-Marion.

(Doc. 1, pp. 1-6).

He seeks

monetary relief against the defendant. (Doc. 1, p. 2).
This case is now before the Court for a preliminary review of the Complaint (Doc. 1)
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.

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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).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A. The Complaint is subject to dismissal under
this standard.
The Complaint
Plaintiff filed a “Bill of Complaint for Eighth Amendment Violations” against the Federal
Bureau of Prisons (“BOP”) under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346,
2671-80.

His “Bill of Complaint” consists of a two-page document, which indicates that

Plaintiff seeks monetary relief against the BOP under the FTCA. (Doc. 1, pp. 1-2). However,
the “Bill of Complaint” sets forth virtually no coherent factual allegations against the defendant.
Id. Plaintiff instead relies on statements he made in a “Claim for Damage, Injury, or Death” that
he filed with the BOP on December 28, 2016. (Doc. 1, pp. 3-6). He attached a copy of the
Claim to the “Bill of Complaint” and incorporated it by reference therein. Id.
There, Plaintiff challenges the conditions of his confinement in the Communications
Management Unit (“CMU”) at USP-Marion.

(Doc. 1, pp. 3-6).

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He complains about an

accumulation of bird “feces, urine, saliva, bird feathers, etcs [sic], inside the windows, window
panes, [and] screens.” (Doc. 1, p. 3). In the cells, Plaintiff is exposed to “urine, semen, saliva,
blood plasma, sweat, bird feathers, animal hair, parasites, bacteria, e-coli, fungi, AIDS/HIV,
hepatitis, bacilli-cocci organisms, and other disease[s].” (Doc. 1, p. 4). He has also observed
mold and notes a “constant odor” in the unit. Id.
The unit allegedly has “deplorable ventilation systems” that cause “deplorable inhalation”
due to “poor air circulation.” (Doc. 1, pp. 3-4). Plaintiff expresses concern that exposure to
these conditions “can/will exacerbate asthma and many other health concerns . . . [l]ike throat
cancer” for the inmates. Id. He blames these conditions for making him sick “three times.”
(Doc. 1, p. 6). However, Plaintiff does not disclose what symptoms or health problems he
experienced. (Doc. 1, pp. 1-6).
The only “chemical” that is available to inmates for cleaning on a daily basis is a “pink
solution.” (Doc. 1, p. 3). On November 8, 2016, inmates were also given other cleaning
supplies, including gloves, dusk masks, a ladder, and a special key to secure the windows. Id.
Plaintiff and three other inmates received these supplies. Id. However, the four of them simply
could not address all of the problems. Id. To do so would require additional manpower,
scaffolding, and a hydraulic system for power washing the area. (Doc. 1, p. 4). Plaintiff
maintains that the prison’s staff is responsible for ensuring that the conditions of confinement are
acceptable, not the inmates. Id.
Merits Review Under 28 U.S.C. § 1915A
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
organized the claim in Plaintiff’s pro se Complaint into the following count:

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Count 1 -

Defendant, by and through the negligence or deliberate
indifference of UPS-Marion officials, is liable under the Federal
Tort Claims Act for Plaintiff’s exposure to conditions at USPMarion that are harmful to his present and future health.

The parties and the Court will use this designation in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. This designation does not constitute an
opinion regarding the merits of this claim.
Discussion
Plaintiff’s Complaint does not survive preliminary review under § 1915A. He asserts a
single claim under the FTCA against the Federal Bureau of Prisons. However, Plaintiff has
named the wrong defendant.
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). 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 must be named as
a party.
The Federal Bureau of Prisons is not the same entity as the United States. The Seventh
Circuit has explained that “[g]overnment agencies do not merge into a monolith; the United
States is an altogether different party.” Hughes, 701 F.2d at 58. Absent “explicit authorization
to the contrary,” a federal agency cannot be sued directly under the FTCA, regardless of that
agency’s authority to sue or be sued. See 28 U.S.C.A. § 2679; Russ v. United States, 62 F.3d
201, 203 n. 1 (7th Cir. 1995).

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The Court will not substitute the United States in place of the Federal Bureau of Prisons.
See Myles v. United States, 416 F.3d 551, 551-52 (7th Cir. 2005). In order to make someone a
party, the plaintiff, not the Court, must name the party in the case caption of the Complaint. See
id. (citing FED. R. CIV. P. 10(a) (“In the complaint, the title of the action shall include the names
of all the parties”)). Plaintiff failed to name the United States as a defendant, and the Court will
not decide who Plaintiff sues. Plaintiff must make this decision.
When doing so, Plaintiff should also consider whether to bring any claims against
individual federal officials under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971). The Complaint suggests that Plaintiff may have intended to do so. He complains about
the decision of federal officials to ignore the filthy conditions in the CMU. (Doc. 1, pp. 3-6).
Plaintiff refers to “Eighth Amendment Violations” in the title of his Complaint and throughout
the statement of his claim. (Doc. 1, pp. 1-6). Given this, it appears as though Plaintiff intended
to bring a Bivens claim against one or more individual officers.
This, too, is Plaintiff’s decision to make. A prisoner may seek relief against federal
agents in federal court in three ways. He may bring a suit against the United States under the
FTCA for misconduct 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 bring
a suit against the individual agent(s) for a violation of his constitutional rights under Bivens. Id.
Finally, a plaintiff may bring an FTCA claim and a Bivens claim together in the same suit. See,
e.g., Ting v. United States, 927 F.2d 1504, 1513 n. 10 (9th Cir. 1991).
Plaintiff’s Complaint focuses only on an FTCA claim, and the Court has not construed it
to include a claim under Bivens. See Myles, 416 F.3d at 551 (pro se federal inmate’s complaint
asserting an FTCA claim against United States could not be deemed to assert a Bivens claim

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against individual federal employees who were not specified in the case caption). However, this
does not preclude Plaintiff from bringing a Bivens claim. He may still raise the claim in this
action, if he chooses to do so, or bring a separate action to pursue any claim that may exist under
Bivens.
The Complaint shall be dismissed for failure to state a claim upon which relief may be
granted. Both the FTCA claim in Count 1 and any potential claim under Bivens should be
considered dismissed without prejudice. Further, Plaintiff shall have an opportunity to re-plead
his claim(s) by filing a First Amended Complaint that complies with the deadline and
instructions for doing so 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 Complaint (Doc. 1) 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 Defendant FEDERAL BUREAU OF PRISONS is
DISMISSED with prejudice, based on Plaintiff’s failure to state any claim for relief against this
defendant.

The Clerk is DIRECTED to TERMINATE the FEDERAL BUREAU OF

PRISONS as a party to this action.

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Plaintiff is GRANTED leave to file his “First Amended Complaint” on or before June
6, 2017. Should Plaintiff fail to file his First 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 an 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,
“First Amended Complaint,” and he should use the case number for this action (Case No. 17-cv00326-JPG). He should refer to the constitutional or statutory ground(s) for relief. Plaintiff
should name the proper defendant(s). The 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.
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

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(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 an 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: May 5, 2017

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

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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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