Jordan v. Attorney General et al

Filing 62

ORDER DENYING 45 MOTION for Leave to File filed by Joseph Ray Jordan. Signed by Magistrate Judge Reona J. Daly on 10/3/2019. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH RAY JORDAN,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Case No. 18-cv-1100-JPG-RJD

ORDER
DALY, Magistrate Judge:
Plaintiff Joseph Ray Jordan, an inmate in the custody of the United States Bureau of Prisons
(“BOP”), alleges he was attacked by several inmates while he was incarcerated in the
communications management unit (“CMU”) at the United States Penitentiary in Marion, Illinois
(“USP Marion”). Plaintiff alleges he complained about the dangerous conditions in the CMU to
BOP officials, but was told not to concern himself with prison operations. Plaintiff is proceeding
in this action on the following claim:
Count 1:

Defendant United States, by and through the negligence or deliberate
indifference of the BOP Director and Unknown Staff at USP Marion, is
liable for Plaintiff’s 2014 assault and resulting injuries under the FTCA.

Plaintiff submitted an Amended Complaint for review on March 13, 2019. The Court
construed the Amended Complaint as a motion for leave to file a second amended complaint
because Plaintiff was not entitled to amend his pleading as a matter of course under Federal Rule
of Civil Procedure 15(a). Prior to submitting his amended complaint for review, Plaintiff filed
numerous motions seeking reconsideration of the Court’s screening order. These motions were
addressed by District Judge Gilbert on May 14, 2019 (Doc. 56). Judge Gilbert advised Plaintiff
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a decision would be rendered on his pending motion for leave to file a second amended complaint
if Plaintiff did not file a new motion for leave to file along with a newly-revised Second Amended
Complaint by June 4, 2019. Plaintiff has not filed a new motion for leave, nor has he submitted
a revised Second Amended Complaint for review.

Accordingly, now before the Court is

Plaintiff’s motion for leave to file a second amended complaint (Doc. 45).
Federal Rule of Civil Procedure 15(a) provides that a party may amend a pleading and that
leave to amend should be freely given "when justice so requires." The Seventh Circuit maintains
a liberal attitude toward the amendment of pleadings "so that cases may be decided on the merits
and not on the basis of technicalities." Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1334 (7th Cir.
1977). The Circuit recognizes that "the complaint merely serves to put the defendant on notice
and is to be freely amended or constructively amended as the case develops, as long as amendments
do not unfairly surprise or prejudice the defendant." Toth v. USX Corp., 883 F.2d 1297, 1298 (7th
Cir. 1989). A court may also deny a party leave to amend if there is undue delay, dilatory motive
or futility. Guise v. BMW Mortgage, LLC, 377 F.3d 795, 801 (7th Cir. 2004).
In his proposed second amended complaint 1 , Plaintiff again sets forth his allegations
concerning the December 10, 2014 assault, and alleges he suffered injuries that occurred “up to
and about” September 10, 2015. Although not entirely clear, it appears Plaintiff is attempting to
bring claims against the BOP for instituting unconstitutional policies that led to his assault and the
provision of inadequate medical care to treat his resulting injuries. However, Plaintiff only
specifically identifies the United States of America as a defendant. Plaintiff indicates that the
United States of America is the defendant for purposes of this tort action, but goes on to allege that

1

Plaintiff captions his filing as an “Amended Complaint,” however, it is correctly captioned as a “Second Amended
Complaint” as Plaintiff’s Amended Complaint was filed on October 3, 2018 (Doc. 16).

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employees of the BOP caused, and exacerbated, the injuries alleged herein. Plaintiff asserts that
the BOP employees include those identified by job description or title, and time periods and
location, within the claims and legal claims sections of this complaint. Plaintiff notes that he
seeks an order of the Court directing the defendant to identify the employees by full names and
titles.
Insofar as Plaintiff is attempting to bring claims against employees of the BOP or the BOP
itself pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), his
attempts fail. As set forth in the Court’s previous Orders (Docs. 19 and 56), such claims are timebarred. The assault giving rise to the proposed claims occurred on December 10, 2014, and there
is no particularized allegation of any misconduct on behalf of prison officials after approximately
February 2015, when Plaintiff was released from the special housing unit back to the CMU.
Indeed, Plaintiff merely alleges that certain individuals remained housed in the CMU and he
experienced weight loss, extreme anxiety, panic attacks, sleepless nights, and mental anguish
stemming from the December 2014 incident. There is no action attributed to any BOP staff
members that caused or contributed to any alleged injury. Because this lawsuit was filed, at the
latest, on August 22, 2017, any proposed Bivens actions are time barred. Plaintiff’s proposed
amendments to his complaint are therefore futile. Plaintiff’s motion for leave to file a second
amended complaint (Doc. 45) is DENIED.
IT IS SO ORDERED.
DATED: October 3, 2019
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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