Coleman v. USP Marion et al

Filing 11

ORDER DISMISSING #1 Complaint without prejudice. Plaintiff is GRANTED leave to file a First Amended Complaint on or before December 17, 2021. Failure to do so shall result in dismissal of the entire action with prejudice and a "strike." See FED. R. CIV. P. 41(b); 28 U.S.C. 1915(g). The Clerk's Office is DIRECTED to SEND Plaintiff a blank civil rights complaint form. Signed by Judge J. Phil Gilbert on 11/18/2021. (jsy)

Case 3:21-cv-01280-JPG Document 11 Filed 11/18/21 Page 1 of 5 Page ID #37

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
REGINALD COLEMAN, #13430-076,

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Plaintiff,
vs.
USP MARION and FBOP,
Defendants.

Case No. 21-cv-01280-JPG

MEMORANDUM & ORDER
GILBERT, District Judge:
Plaintiff Reginald Coleman is an inmate in the custody of the Federal Bureau of Prisons
(“BOP”) and is currently confined at the United States Penitentiary located in Marion, Illinois
(“USP-Marion”). He brings this action for alleged violations of his constitutional rights by persons
acting under color of federal authority pursuant to Bivens v. Six Unknown Named Agents, 403 U.S.
388 (1971). (Doc. 1, pp. 1-4). In the Complaint, Plaintiff claims he has been housed at USPMarion in living conditions that pose a substantial risk of serious harm to his health and safety.
He suffers from numerous chronic health conditions that place him at high risk of stroke, heart
attack, or death if he contracts COVID-19. Even so, he has been placed in an overcrowded cell.
Plaintiff characterizes his 100-month sentence as a “death sentence.” (Id. at 3). He brings this
action for money damages and unspecified injunctive relief against USP-Marion and the BOP for
negligence, medical malpractice, and Eighth Amendment violations. (Id.).
The Complaint is subject to review under 28 U.S.C. § 1915A. Section 1915A requires the
Court to screen prisoner complaints and filter out non-meritorious claims. 28 U.S.C. § 1915A(a).
Any portion of the Complaint that is legally frivolous or malicious, fails to state a claim for relief,
or requests money damages from an immune defendant must be dismissed. 28 U.S.C. § 1915A(b).
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At this juncture, the factual allegations are liberally construed. Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Discussion
Based on the allegations, the Court finds it convenient to designate two counts in the pro
se Complaint:
Count 1:

Eighth Amendment claim against Defendants for subjecting Plaintiff to
overcrowded living conditions at USP-Marion that pose a substantial risk
of serious harm to his health and safety in light of his chronic health
conditions and the ongoing COVID-19 pandemic.

Count 2:

Negligence claim against Defendants for subjecting Plaintiff to
overcrowded living conditions at USP-Marion that pose a substantial risk
of serious harm to his health and safety in light of his chronic health
conditions and the ongoing COVID-19 pandemic.

Any claim that is mentioned in the Complaint but not addressed herein is considered
dismissed without prejudice as inadequately pled under Twombly.1
Count 1
Bivens provides an implied damages remedy for a limited set of constitutional deprivations
caused by persons acting under color of federal authority. Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971). In Ziglar v. Abbasi, 137 U.S. 1843 (2017), the Supreme Court made clear
that federal courts should not expand this remedy into contexts not already officially recognized
by the Supreme Court, unless certain “special factors” counsel otherwise. Ziglar, 137 U.S. at
1859-60. The Court cited three instances in which a Bivens remedy should be recognized against
federal officials: (1) Fourth Amendment claims involving unlawful searches and seizures; (2) Fifth
Amendment due process claims involving gender discrimination; and (3) Eighth Amendment
claims for inadequate medical treatment. Id. at 1854-55 (citations omitted).
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See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (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”).

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Plaintiff’s claim arises under the Eighth Amendment, but it cannot proceed against either
defendant at this juncture. This is because neither defendant is an individual federal agent, and
Bivens only offers a damages remedy for certain constitutional violations against individual
officers. Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001). This damages remedy
does not extend to the employers of individual federal agents, such as USP-Marion or the BOP.
Id. at 71-72 & n.2; See Holz v. Terre Haute Reg’l Hosp., 123 F. Appx. 712 (7th Cir. 2005); Muick
v. Glenayre Elec., 280 F.3d 741, 742 (7th Cir. 2002); F.D.I.C. v. Meyer, 510 U.S. 471 (1994)
(“An extension of Bivens to agencies of the Federal Government is not supported by the logic of
Bivens itself.”). And, Plaintiff has not indicated what, if any, injunctive relief he is seeking against
either defendant. Accordingly, Count 1 shall be dismissed without prejudice for failure to state a
claim upon which relief may be granted. He is free to re-plead this claim against the individual
federal agents who were responsible for violating his constitutional rights.
Count 2
The related negligence claim in Count 2 arises under Illinois state law. The Court’s
jurisdiction over this claim is conferred by 28 U.S.C. § 1367, which authorizes a district court to
exercise supplemental jurisdiction over state law claims when the state claims “are so related to
[the federal claims] that they form part of the same case or controversy under Article III of the
United States Constitution.” 28 U.S.C. § 1367(a). When a district court dismisses all claims over
which it has original jurisdiction, such as Count 1 above, the district court has discretion to either
retain jurisdiction over the supplemental claim or dismiss it. 28 U.S.C. § 1367(c)(3); Kennedy v.
Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 717 (7th Cir.), cert. denied, 525 U.S. 870
(1998). The general rule is to dismiss the pendent state law claim. 28 U.S.C. § 1367(c)(2), (3);
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988). The Court will follow the general

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rule here and dismiss Count 2 without prejudice to Plaintiff re-pleading this claim in this or another
action in federal or state court.
Disposition
IT IS ORDERED that the Complaint (Doc. 1) is DISMISSED without prejudice.
COUNT 1 is DISMISSED without prejudice for failure to state a claim upon which relief may be
granted, and COUNT 2 is DISMISSED without prejudice because the Court declines to exercise
supplemental jurisdiction over this claim pursuant to 28 U.S.C. § 1367(c)(2), (3).
If he wishes to re-plead any of the claims in this case, Plaintiff is GRANTED leave to file
a “First Amended Complaint” on or before December 17, 2021. Should Plaintiff fail to file his
First Amended Complaint within the allotted time or consistent with the instructions in this Order,
the entire case shall be dismissed with prejudice for failure to comply with a court order and/or for
failure to prosecute his claims. 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. § 1915(e)(2).
The dismissal shall also count as a “strike” within the meaning of 28 U.S.C. § 1915(g).
If he does choose to proceed, it is strongly recommended that Plaintiff use the civil rights
complaint form designed for use in this District. He should label the form, “First Amended
Complaint,” and he should use the case number for this action (No. 21-cv-01280-JPG). To enable
Plaintiff to comply with this Order, the CLERK is DIRECTED to mail Plaintiff a blank civil
rights 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
(7th Cir. 2004). Therefore, the First Amended Complaint must stand on its own without reference
to any previous pleading. Plaintiff must re-file any exhibits he wishes the Court to consider along
with it. The First Amended Complaint is subject to review pursuant to 28 U.S.C. § 1915A.
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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 remains due and payable, regardless of
whether Plaintiff files a First Amended Complaint. 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: 11/18/2021
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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