Perkins v. USP Marion et al

Filing 8

ORDER DISMISSING without prejudice 1 Complaint filed by Harold Perkins. Amended Complaint due by 6/3/2022. Signed by Chief Judge Nancy J. Rosenstengel on 5/6/2022. (anp)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HAROLD PERKINS,
Plaintiff,
vs.
USP MARION and FEDERAL
BUREAU OF PRISONS,
Defendants.

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Case No. 21-cv-1459-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff Harold Perkins, an inmate of the Federal Bureau of Prisons (“BOP”) who
is currently incarcerated at U.S. Penitentiary-Marion (“USP–Marion”), brings this action
for deprivations of his constitutional rights pursuant to Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971). In the Complaint, Perkins alleges medical malpractice,
negligence, and deliberate indifference during the Covid-19 pandemic. Specifically, he
alleges that he was housed in an overcrowded cell during the pandemic which could turn
his 70-month sentence into a “death sentence” (Doc. 1, p. 1). He seeks monetary damages
and injunctive relief.
This case is now before the Court for preliminary review of the Complaint
pursuant to 28 U.S.C. § 1915A. Under Section 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 legally frivolous, malicious, fails to state a claim upon which

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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).
The Complaint
In his Complaint (Doc. 1), Perkins makes the following allegations: On September
25, 2019, Perkins arrived at USP–Marion and was placed in general population, in L Unit,
in a three-man cell (Id. at p. 5). Perkins feared contracting Covid-19 in such close
proximity to other inmates, and his anxiety levels rose as a result (Id.). Perkins alleges
that three-man cells are no longer permissible in the BOP and are especially dangerous
due to the Covid-19 pandemic (Id. at p. 2). Perkins maintains that USP-Marion is acting
with deliberate indifference by continuing to house inmates in three-man cells as opposed
to two. Perkins also alleges that USP-Marion has admitted disregarding personal
protection equipment (“PPE”) protocols, Center for Disease Control guidelines, and
federal law. The prison merely pays fines administrated by the government rather than
comply (Id.).
There is no indication in the Complaint that Perkins contracted Covid-19; instead,
he merely alleges that housing him in a three-man cell puts him at risk of dying if he gets
infected with Covid-19 (Id.). Perkins maintains that he signed a plea deal for 70-months’
imprisonment, but USP-Marion will make his sentence a “death sentence” if he continues
to be housed in a three-man cell and contracts Covid-19.
Discussion
There are a number of issues with Perkins’s Complaint. He seeks damages and
injunctive relief for what he labels as “medical malpractice, medical negligence, and
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deliberate difference in violation of the Eighth Amendment,” but his factual allegations
indicate a claim of conditions of confinement (Doc. 1, p. 1). He alleges that the number of
inmates in a single cell puts him at risk of contracting Covid-19. He also cites to the Fifth,
Sixth, and Fourteenth Amendments as a basis for his claims, but he does not further
explain what claims could be raised under those Amendments. The Court also cannot
discern whether Perkins is pursuing a claim for denial of medical care related to his
exposure to Covid-19 or a claim for unconstitutional living conditions based on his small
cell, or both. The allegations are simply too vague and ambiguous given that he alleges
medical malpractice but only describes conditions of his cell.
The distinction as to the nature of his claim is an important one. In Ziglar v. Abbasi,
137 S.Ct. 1843 (2017), the Supreme Court explained that federal courts should not expand
a remedy under Bivens into contexts not already officially recognized by the Supreme
Court, unless certain “special factors” counsel otherwise. Ziglar, 137 S.Ct. at 1859-60. The
Court cited three instances in which a Bivens remedy has been 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).
In a case such as the one Perkins brings here, a claim against federal officials for money
damages arising from the denial of medical care for Covid-19 would most likely proceed
post-Abbasi, but a claim against federal agents for money damages based on
unconstitutional living conditions may represent an expansion of the Bivens remedy that
is not authorized post-Abbasi, unless special factors counsel otherwise. Without basic
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factual allegations describing the exact nature of Perkins’s claim, the Court simply cannot
tell whether his claim can proceed.
Further, Perkins cannot state a claim against USP-Marion or the BOP for money
damages. These defendants are not individual federal agents, 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 employer of individual federal agents. Id. at 71-72 & n.2; F.D.I.C. v. Meyer,
510 U.S. 471, 486 (1994) (“An extension of Bivens to agencies of the Federal Government
is not supported by the logic of Bivens itself.”). Thus, he cannot seek monetary damages
from either the prison or BOP. To the extent he seeks injunctive relief, however, the
Supreme Court has allowed an equitable action for such relief against a federal agency to
proceed in Bowen v. Massachusetts, 487 U.S. 879, 893 (1988). Thus, the BOP could be a
proper party for injunctive relief, but at this time Perkins does not state a viable claim to
proceed. It is not clear whether Perkins suffered from a serious medical condition and
any individual acted with deliberate indifference. Nor does he describe the specifics of
his cell, including the exact dimensions or whether the cell included plumbing and
furniture that would reduce the size. He also does not indicate that he informed any
individual official about the conditions he faced and whether they acted with deliberate
indifference.
Accordingly, the Complaint is DISMISSED without prejudice. Perkins will have
an opportunity to file a First Amended Complaint if he wishes to pursue his claims. If he

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chooses to do so, Perkins must comply with the instructions and deadlines set forth
below.
Disposition
For the reasons stated above, Perkins’s Complaint is DISMISSED without
prejudice. He is GRANTED leave to file a “First Amended Complaint” on or before June
3, 2022. Should he fail to file his First Amended Complaint within the allotted time or
consistent with the instructions set forth 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. App. 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
count as one of Perkins’s three allotted “strikes” under 28 U.S.C. § 1915(g).
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). 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 Perkins must re-file any exhibits he wishes the Court to
consider along with the First Amended Complaint. The First Amended Complaint is
subject to review pursuant to 28 U.S.C. § 1915A.
Perkins 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 he elects to file a First Amended Complaint. See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
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Finally, Perkins 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 seven 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 6, 2022
_____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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