Jordan v. Attorney General et al

Filing 56

ORDER DENYING Plaintiff's 27 Motion for Reconsideration of Order Referring Case, 28 Motion for Leave to File Second Amended Complaint, 30 Motion for Amendment to Order Referring Case, 32 Motion for Joinder or, Alternatively, to Add Claim , and 41 Renewed Motion for Reconsideration and/or to Amend, with two exceptions: First, Footnote 4 of Document 19 is MODIFIED to reflect the filing date of the original Complaint as being August 22, 2017, instead of September 15, 2017, and, second , the Bivens claims (Counts 2 and 3) are DISMISSED without prejudice to Plaintiff re-pleading both claims in an amended complaint. Further, the Court DEFERS a decision on Plaintiff's 45 Motion for Leave to File Second Amended Complaint for 21 days. If Plaintiff wishes to replace his proposed Second Amended Complaint with a newly-revised version in light of this Order, he must file a new Motion for Leave to File Second Amended Complaint along with a newly-revised Second Amended Complaint c onsistent with Federal Rule of Civil Procedure 15 and Local Rule 15.1 on or before June 4, 2019. Failure to do so will result in a decision on the pending 45 Motion for Leave to File Second Amended Complaint. Signed by Judge J. Phil Gilbert on 5/14/2019. (jsy)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH RAY JORDAN, #60818-054,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendants.

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Case No. 18−cv–01100−JPG-RJD

MEMORANDUM AND ORDER
GILBERT, District Judge:
Now before this Court for consideration are several motions filed by Plaintiff Joseph Jordan
to challenge this Court’s initial Severance Order (Doc. 18) and Screening Order (Doc. 19). (See
Docs. 27, 28, 30, 32, and 41). In the Motions, Plaintiff takes issue with the Court’s decision to
sever his religious diet claims from this action and to dismiss his Bivens claims as time-barred
based largely on additional factual allegations he sets forth in the motions. Plaintiff also seeks
leave to amend his Complaint, but he offers no proposed amendment with the motions. With the
exception of Document 30, Plaintiff’s Motions shall be DENIED.
Background
This case has a complicated and protracted procedural history that pre-dates its arrival in
this District. During his incarceration at the Federal Correctional Institution located in Terre
Haute, Indiana (“FCI-Terre Haute”), Plaintiff filed the action to address claims stemming from a
2014 inmate assault at the United States Penitentiary located in Marion, Illinois (“USP-Marion”).
He asserted claims against the United States pursuant to the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 1346, 2671-80, and against the 2014 BOP Director and Unknown USP-Marion Staff

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pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). In connection
with these claims, Plaintiff requested monetary relief.
Plaintiff also challenged the Federal Bureau of Prison’s (“BOP”) one-size-fits-all religious
diet as nutritionally inadequate and as being an impediment to his religious exercise. He asserted
claims against BOP officials responsible for adopting and enforcing the “one-size-fits-all”
religious diet policy under the First Amendment, Eighth Amendment, and Religious Freedom and
Restoration Act (“RFRA”), 42 U.S.C. § 2000bb. He specifically complained about the denial of
a meat- and egg-free diet at USP-Terre Haute. In connection with these claims, Plaintiff requested
an order enjoining the ongoing interference with his religious diet.
Plaintiff originally filed this suit in the United States District Court for the District of
Columbia. Jordan v. Attorney General, et al., No. 17-cv-01944-UNA (D.C. 2017). On March 28,
2018, the case was transferred to the Southern District of Indiana, where the Complaint was
dismissed without prejudice for violating Federal Rule of Civil Procedure 8. See Jordan v.
Attorney General, et al., No. 18-cv-00154-WTL-MJD (S.D. Ind.). The Southern District of
Indiana recognized Plaintiff’s religious diet claims as being “separate and distinct” from the 2014
assault claims. (Doc. 8, p. 3). Plaintiff was granted leave to file an amended complaint focusing
on his religious diet claims. However, the 2014 inmate assault claims were severed and transferred
to this District on May 7, 2018. (Doc. 13, pp. 1-2).
Plaintiff missed the deadline to amend the complaint in his religious diet case, and it was
dismissed without prejudice on May 24, 2018. (Docs. 14 and 15). The Southern District of Indiana
denied his request for post-judgment relief. (Docs. 18 and 19). However, the district court
informed Plaintiff that he could file a new action if he wished to pursue the religious diet claims.

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This Court received only a portion of the Complaint (i.e., pages 29-40) with the transferred
case involving the 2014 inmate assault. (Docs. 1 and 13). Plaintiff requested additional time to
sort out his claims, and the Court granted him time to file an amended complaint. (Docs. 10, 13,
and 16). In the First Amended Complaint filed on October 3, 2018, Plaintiff again joined the
religious diet claims and 2014 inmate assault claims together in the same action. (Doc. 16).
In a Severance Order dated October 17, 2018, this Court explained that the two sets of
claims were “still improperly joined in the same action” because they involve different groups of
defendants, arise from separate transactions or occurrences, and share no common question of law
or fact.” (Doc. 18, p. 4). The Court severed the religious diet claims into a separate case for
transfer to the Southern District of Indiana. At the time, Plaintiff was housed at FCI-Terre Haute
and requested injunctive relief against prison officials at that facility.
In a separate Screening Order entered the same day, the Court screened the claims arising
from Plaintiff’s 2014 inmate assault pursuant to 28 U.S.C. § 1915A. (Doc. 19). The Court
recognized three separate claims at issue in this case: Count 1 - FTCA claim against the United
States for the 2014 inmate assault on Plaintiff at UPS-Marion; Count 2 - Eighth Amendment claim
brought pursuant to Bivens against the BOP Director (2014), USP-Marion Wardens (2013-15),
and CMU officers for failing to protect Plaintiff from the inmate assault on December 10, 2014;
and Count 3 - Eighth Amendment deliberate indifference to medical needs claim brought pursuant
to Bivens against Unknown Administrators (December 2014 and January 2015) for failing to
adequately treat the injuries Plaintiff sustained in the 2014 inmate assault.
The FTCA claim (Count 1) against the United States survived screening based on the
allegations of negligence and/or deliberate indifference against the 2014 BOP Director and/or
Unknown Staff at USP-Marion. (Doc. 19, pp. 4-5). The Eighth Amendment claims (Counts 2 and

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3) (“Bivens claims”) were dismissed as being time-barred. (Doc. 19, p. 5). The Court explained
that the assault giving rise to both claims occurred on December 10, 2014, and the alleged
misconduct of prison officials continued through January 2015. Plaintiff knew he was injured on
the date of the assault and certainly no later than January 2015. The applicable 2-year statute of
limitations thus expired before he filed this action in late 2017. O’Gorman v. City of Chicago, 777
F.3d 885, 889 (7th Cir. 2015); 735 ILCS § 5/13-202. Counts 2 and 3 were dismissed with
prejudice. (Doc. 19, pp. 5-6).
Motions
Plaintiff filed five separate motions that challenge the Severance Order (Doc. 18) and
Screening Order (Doc. 19), either directly or indirectly: (A) Motion for Reconsideration of the
Order Referring Case (Doc. 27) filed November 13, 2018; (B) Motion for Leave to File Second
Amended Complaint (Doc. 28) filed November 13, 2018; (C) Motion for Amendment to Order
Referring Case (Doc. 30) filed November 13, 2018; (D) Motion for Joinder or, Alternatively, to
Add Claim Against United States (Doc. 32) filed November 13, 2018; and (E) Renewed Motion
for Reconsideration and/or to Amend Order (Doc. 41) filed February 5, 2019.
Plaintiff’s Motions seek relief from the Severance Order (Doc. 18) and Screening Order
(Doc. 19) entered October 17, 2018. Plaintiff challenges the Court’s decision to sever his religious
diet claims into a separate case or, alternatively, seeks leave to amend his complaint to add a claim
challenging the BOP’s “one-size-fits-all” religious diet under the Religious Freedom Restoration
Act. Plaintiff also seeks reinstatement of the Bivens claims on the ground that the Eighth
Amendment violations continued until September 15, 2015, and he filed suit less than two years
later. Plaintiff offers additional facts in support of this assertion; he describes threats to his safety
posed by placement near his perpetrator and his perpetrator’s “Islamist ‘brothers’” in USP-

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Marion’s communications management unit (“CMU”) between January and September 2015.
Plaintiff also points out that he filed suit less than two years later on August 22, 2017—not on
September 15, 2017. (see Doc. 30).
The Court has authority to reconsider the two nonfinal orders that Plaintiff now challenges
in his motions (Docs. 27, 28, 30, 32, and 41) pursuant to Federal Rule of Civil Procedure 54. See
Terry v. Spencer, 888 F.3d 890, 893 (7th Cir. 2018) (citations omitted) (district judges may
reconsider interlocutory orders at any time before final judgment). Rule 54(b) authorizes the
district court to revise “any order or other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties . . . at any time before
the entry of . . . judgment.” See FED. R. CIV. P. 54(b); Terry, 888 F.3d at 893 (citations omitted).
Pursuant to this authority, the Court has reviewed the Severance Order and Screening Order.
Upon review of the Severance Order, the Court concludes that it acted within its discretion
when severing Plaintiff’s religious diet claims from this case. The religious diet claims and 2014
inmate assault claims involve separate transactions or occurrences, different defendants, and
unrelated requests for relief. The severance decision is not only consistent with the Southern
District of Indiana’s earlier decision, but it is also consistent with well-established Seventh Circuit
precedent.
The Seventh Circuit specifically instructs district courts faced with this situation to “solve
the problem by severance (creating multiple suits that can be separately screened) or dismissing
the excess defendants under Fed. R. Civ. P. 21.” Wheeler v. Wexford Health Sources, Inc., 689
F.3d 680, 683 (7th Cir. 2012) (Lee v. Cook County, 635 F.3d 969 (7th Cir. 2011)). District courts
also have “broad discretion” when deciding whether to sever or dismiss improperly joined

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defendants. Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011). The Court acted well within its
discretion when severing Plaintiff’s religious diet claims into a new suit.
Upon review of the Screening Order, the Court finds that its decision to dismiss the Bivens
claims (Counts 2 and 3) as time-barred was proper, even if the Court accepts Plaintiff’s argument
that his Complaint was filed on August 22, 2017. Plaintiff contends that this Court erred when
finding that the original Complaint was filed on September 15, 2017. (Doc. 1, p. 13). The prison
mailbox rule provides that “a pro se prisoner’s legal documents are considered filed on the date
that they’re tendered to prison staff in accordance with reasonable prison policies, regardless of
whether they are ultimately mailed or uploaded.” See Taylor v. Brown, 787 F.3d 851, 859 (7th
Cir. 2015).

Plaintiff certified that he mailed the Complaint “using BOP-provided mailing

procedures . . . to the District Court” on August 22, 2017. (Doc. 1, p. 13). Giving Plaintiff the
benefit of this rule, the Court finds that he filed the Complaint on August 22, 2017, and his Motion
seeking correction of footnote 4 in the Screening Order (Doc. 19) will be granted.
His Bivens claims are still time-barred according to the allegations in the First Amended
Complaint. Count 2 involves an Eighth Amendment claim against those BOP officials who failed
to protect Plaintiff from an inmate assault that occurred on December 10, 2014. Count 3 involves
a related Eighth Amendment claim against USP-Marion staff and administrators who placed him
in the CMU for the next seven weeks following surgery without adequate medical care or nutrition.
The statute of limitations for a Bivens claim “beings to run when the plaintiff knows that he has
been injured.” See Khan v. United States, 808 F.3d 1169, 1174 (7th Cir. 2015); Leavell v. Kieffer,
189 F.3d 492, 495 (7th Cir. 1999). Plaintiff knew that he was injured on December 10, 2014, and
knew that he received inadequate medical treatment for his injuries in the CMU during the next

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seven weeks (prior to February 2015). He did not file this action until August 22, 2017, which is
well beyond the two-year statute of limitations for his claims.
Plaintiff’s attempt to argue a continuing violation based on facts that support a new claim
against prison officials (i.e., for failing to protect him from his perpetrator and his perpetrator’s
“Islamist ‘brothers’” in the communications management unit through September 2015) is
unavailing. These new factual allegations belong in an amended complaint and do not support his
motion for reconsideration of the Screening Order. However, the Court will modify the dismissal
of the Bivens claims to reflect their dismissal without prejudice in the Screening Order, leaving
Plaintiff free to reassert his Bivens claims in an amended complaint if he can demonstrate that they
are timely.
Finally, Plaintiff seeks leave to amend his First Amended Complaint. However, he did not
file a proposed amended complaint with Documents 27, 28, 30, 32, or 41. His requests for leave
to amend shall therefore be denied for non-compliance with Local Rule 15.1. This rule requires a
plaintiff to submit the proposed amended complaint along with his motion seeking leave to amend.
See SDIL Local Rule 15.1. The denial of this request is without prejudice to any other pending or
future motion seeking leave to amend the complaint.
This Order does not address Document 45, which is a Motion for Leave to File Second
Amended Complaint. The Court will defer a decision on the Motion for 21 days. If Plaintiff
wishes to replace the proposed Second Amended Complaint with a newly-revised version, in light
of this Order, he must follow the instructions and deadline for doing so in the below disposition.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration (Doc. 27),
Motion for Leave to File Second Amended Complaint (Doc. 28), Motion for Amendment to

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Court’s Order (Doc. 30), Motion for Joinder or, Alternatively, to Add Claim (Doc. 32), and
Renewed Motion for Reconsideration and/or to Amend (Doc. 41) are DENIED, with two
exceptions: (1) Footnote 4 of Document 19 is MODIFIED to reflect the filing date of this action
as being August 22, 2017, instead of September 15, 2017; and (2) the Bivens claims (Counts 2 and
3) are DISMISSED without prejudice to Plaintiff re-pleading both claims in an amended
complaint.
This Order does not address Plaintiff’s Motion for Leave to File Second Amended
Complaint (Doc. 45). The Court DEFERS a decision on this Motion for 21 days. If Plaintiff
wishes to replace his proposed Second Amended Complaint with a newly-revised version in light
of this Order, he must file a new Motion for Leave to File Second Amended Complaint along with
a newly-revised Second Amended Complaint consistent with Federal Rule of Civil Procedure 15
and Local Rule 15.1 on or before June 4, 2019. Failure to do so will result in a decision on the
pending Motion for Leave to File Second Amended Complaint.
IT IS SO ORDERED.
DATED: May 14, 2019
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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