Jordan v. Attorney General et al
Filing
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ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge J. Phil Gilbert on 10/17/2018. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH RAY JORDAN, #60818-054,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
FEDERAL BUREAU OF PRISONS
DIRECTOR (2014), and
UNKNOWN STAFF AT USP-MARION,
Defendants.
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Case No. 18−cv–01100−JPG
MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Joseph Jordan, an inmate who is currently incarcerated at the Federal
Correctional Institution located in Terre Haute, Indiana (“FCI-Terre Haute”), brings this action
for alleged violations of his federal rights that occurred in connection with a 2014 inmate assault
at the United States Penitentiary located in Marion, Illinois (“USP-Marion”). This matter is now
before the Court for preliminary review of the First Amended Complaint. (Doc. 16). In it,
Plaintiff asserts claims against the United States under the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 1346, 2671-80, and against the 2014 Director of the Federal Bureau of Prisons
(“BOP”) and Unknown Staff at USP-Marion pursuant to Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971).1 He seeks monetary relief. (Doc. 16, pp. 2-14).
This case is before the Court for preliminary review of the Amended Complaint pursuant
to 28 U.S.C. § 1915A. Under § 1915A, the Court is required to screen prisoner complaints to
filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). Any portion of a complaint that is
1
Plaintiff also brings unrelated claims against different defendants for the denial of a religious diet. (Doc.
16, pp. 14-21). These claims were severed into a separate case and transferred to the United States
District Court for the Southern District of Indiana.
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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 must be dismissed.
28 U.S.C. § 1915A(b). At this juncture, the factual allegations of the pro se complaint are to be
liberally construed. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
First Amended Complaint
According to the Amended Complaint, Plaintiff was attacked by several inmates in USPMarion’s communications management unit (“CMU”). (Doc. 16, pp. 3-14). Plaintiff blames the
assault on the conditions of his confinement—namely the housing of low-, medium-, and highaggression inmates together in the CMU without adequate security staff. At least twice in 2013,
Plaintiff complained directly to the BOP Director and prison warden about the dangers posed by
these conditions. (Doc. 16, p. 4). In 2014, he complained to the prison warden and was told not
to concern himself with prison operations. (Doc. 16, p. 5).
On December 10, 2014, Plaintiff was brutally attacked by several high aggression
inmates who wielded weapons. (Doc. 16, pp. 3-14). He suffered a broken jaw that necessitated
surgery, followed by months of painful recovery. Instead of placing Plaintiff in the prison’s
health care unit (“HCU”) for observation following surgery, prison administrators placed
Plaintiff in the CMU’s special housing unit. For seven weeks, he was denied adequate medical
care and nutrition, resulting in unnecessary pain and weight loss. Id.
Plaintiff now brings an FTCA claim against the United States based on the negligence or
deliberate indifference of federal officials at USP-Marion.
He also brings several Eighth
Amendment claims against the 2014 BOP Director2 and Unidentified Staff at USP-Marion3
pursuant to Bivens.
2
Plaintiff mentioned the 2013 BOP Director in the statement of his claim, but he did not name this
individual as a defendant in the case caption or list of defendants. Therefore, all claims against this
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Discussion
In accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the
Court deems it appropriate to organize the claims in Plaintiff’s pro se Amended Complaint, as
follows:
Count 1:
Defendant United States, by and through the negligence or
deliberate indifference of the BOP Director (2014) and Unknown
Staff at USP-Marion (USP-Marion Wardens (2013-15), CMU
Officers (Dec. 10, 2014), and USP-Marion Administrators (Dec.
2014 – Jan. 2015)), is liable for Plaintiff’s 2014 assault and
resulting injuries under the FTCA.
Count 2:
Defendants BOP Director (2014) and Unknown Staff at USPMarion (USP-Marion Wardens (2013-15) and CMU Officers (Doc.
10, 2014)) violated Plaintiff’s right to be free from cruel and
unusual punishment under the Eighth Amendment and pursuant to
Bivens when they failed to protect him from the inmate assault.
Count 3:
Defendants Unknown Staff at USP-Marion (Unknown
Administrators (December 2014 and January 2015)) violated
Plaintiff’s right to be free from cruel and unusual punishment
under the Eighth Amendment and pursuant to Bivens when they
placed him in the CMU for the seven weeks following surgery
without adequate medical care or nutrition.
The parties and the Court will use these designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The designation of these counts does not
constitute an opinion as to their merit. Any claim not identified above but encompassed by
the allegations shall be considered dismissed without prejudice for failure to satisfy the
Twombly pleading standard.
person are considered dismissed without prejudice from the action. See FED. R. CIV. P. 10(a); Myles v.
United States, 416 F.3d 551, 551-52 (7th Cir. 2005) (to be properly considered a party, a defendant must
be “specif[ied] in the caption”).
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The unknown staff are more specifically identified in the Amended Complaint as USP-Marion’s
Wardens (2013-15), unidentified officers who were assigned to the CMU on December 10, 2014
(“Unidentified CMU Officers”), and unidentified prison administrator(s) who assigned Plaintiff to the
CMU’s special housing unit for the seven weeks following surgery on December 13, 2017 (“Unidentified
USP-Marion Administrators (Dec. 2014 – Jan. 2015)”). (Doc. 16, p. 4).
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Count 1
The Federal Tort Claims Act (“FTCA”) authorizes claims for money damages against the
United States for personal injury or death caused by the negligent or wrongful act or omission of
any government employee who was acting within the scope of his or her employment at the time.
28 U.S.C. § 1346(b)(1). Pursuant to the FTCA, “federal inmates may bring suit for injuries they
sustain in custody as a consequence of the negligence of prison officials.” Buechel v. United
States, 746 F.3d 753, 758 (7th Cir. 2014). The allegations support an FTCA claim against the
United States, based on the allegedly negligent conduct of the 2014 BOP Director and/or
Unknown Staff at USP-Marion. Accordingly, the Court will allow Count 1 to proceed against
the United States.4 This claim is dismissed with prejudice against all other defendants. Jackson
v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008).
Counts 2 and 3
Plaintiff’s Bivens claims are time-barred. The statute of limitations for a Bivens action,
like an action brought pursuant to 42 U.S.C. § 1983, is governed by the law of the state where
the incident giving rise to the action occurred. O’Gorman v. City of Chicago, 777 F.3d 885, 889
(7th Cir. 2015) (citing Moore v. Burge, 771 F.3d 444, 446 (7th Cir. 2014); Wallace v. Kato, 549
U.S. 384, 387 (2007)); Delgado-Brunet v. Clark, 93 F.3d 339 (7th Cir. 1996). The tortious
conduct giving rise to this action occurred in Illinois, and a 2-year statute of limitations applies to
personal injury actions in Illinois. 735 ILCS § 5/13-202. Plaintiff’s claims are thus governed by
the 2-year statute of limitations. O’Gorman, 777 F.3d at 889; Wallace, 549 U.S. at 387.
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The Court has not decided whether the FTCA claim is time-barred. Before bringing this suit, Plaintiff
filed a Claim for Damage, Injury, or Death on September 1, 2016. (Doc. 16, p. 24). The BOP denied the
claim on March 15, 2017. (Doc. 16, p. 27). In the denial letter, Plaintiff was instructed to “file suit in an
appropriate U.S. District Court no later than six months after the date of mailing of this notification.” Id.
He filed suit in the United States District Court for the District of Columbia on September 15, 2017, and
the case was transferred to this federal judicial district on May 10, 2018.
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The inmate assault that forms the basis of this action occurred at USP-Marion on
December 10, 2014, and the misconduct of prison officials allegedly continued through January
2015. See Khan v. United States, 808 F.3d 1169, 1174 (7th Cir. 2015); Leavell v. Kieffer, 189
F.3d 492, 495 (7th Cir. 1999) (statute of limitations in a Bivens claim “begins to run when the
plaintiff knows that he has been injured”). The statute of limitations for his Bivens claims
expired prior to February 1, 2017. Plaintiff did not file this action until September 15, 2017, well
beyond the statute of limitations period for his Bivens claims.
Normally, the statute of limitations is an affirmative defense. However, if a plaintiff
“pleads facts that show his suit is time-barred or otherwise without merit, he has pleaded himself
out of court.” Tregenza v. Great American Comm. Co., 12 F.3d 717, 718 (7th Cir. 1993). See
also Khan, 808 F.3d at 1172 (citing Cancer Foundation, Inc. v. Cerberus Capital Management,
LP, 559 F.3d 671, 674-75 (7th Cir. 2009) (although a plaintiff is generally not required to plead
around an affirmative defense, such as a statute of limitations, the district court can dismiss a
complaint as untimely if the plaintiff admits all elements of the affirmative defense). With
respect to his Bivens claims, Plaintiff has pleaded himself out of court. Counts 2 and 3 do not
survive review under 28 U.S.C. § 1915A and shall therefore be dismissed with prejudice.
Disposition
IT IS HEREBY ORDERED that Plaintiff may proceed with his claim under the Federal
Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80, in COUNT 1 against Defendant UNITED
STATES OF AMERICA. However, this claim is DISMISSED with prejudice against all other
defendants.
IT IS FURTHER ORDERED that all claims brought pursuant to Bivens, i.e., COUNTS
2 and 3, are DISMISSED with prejudice as time-barred.
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The Clerk is DIRECTED to
TERMINATE the Federal Bureau of Prisons Director (2014) and Unknown Staff of USPMarion as Defendants in CM/ECF.
The Clerk of Court is further DIRECTED to complete, on Plaintiff’s behalf, a summons
for service of process on the United States; the Clerk shall issue the completed summons.
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 (Doc. 16), and this Memorandum and Order, and (2) send by registered or certified
mail to the Attorney General of the United States at Washington, D.C., a copy of the Summons,
the First Amended Complaint (Doc. 16), and this Memorandum and Order.
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 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 the document was served on the U.S. Attorney. Any paper received by a district
judge or a 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.
Each Defendant is ORDERED to timely file an appropriate responsive pleading to the
First Amended Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United States
Magistrate Judge for further pre-trial proceedings.
Further, this entire matter shall be
REFERRED to a United States Magistrate Judge for disposition, as contemplated by Local
Rule 72.2(b)(3) and 28 U.S.C. § 636(c), should all parties consent to such a referral.
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IT IS FURTHER ORDERED that if judgment is rendered against Plaintiff, and the
judgment includes the payment of costs under Section 1915, Plaintiff will be required to pay the
full amount of the costs, regardless of the fact that his application to proceed in forma pauperis
was granted. See 28 U.S.C. § 1915(f)(2)(A).
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: October 17, 2018
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge
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