STEWART v. DANIELS et al

Filing 6

Entry Granting Motion to Proceed In Forma Pauperis, Dismissing Complaint,and Directing Further Proceedings - The plaintiff's motion to proceed in forma pauperis 5 is granted. It is not feasible to assess an initial partial filing fee at this t ime. Notwithstanding the foregoing ruling, the plaintiff still owes the $350.00 filing fee. The plaintiff's motion to amend 4 is granted to the extent that the claim for relief of costs and attorney fees, if any, and the jury demand are noted. For the reasons discussed above, the complaint is dismissed for failure to state a claim upon which relief can be granted. The plaintiff shall have through December 1, 2015, in which to show cause why this action should not be dismissed for failure to state a claim upon which relief can be granted. If the plaintiff fails to show cause or seek leave to amend, the action will be dismissed for the reasons set forth in this Entry. (See Entry) Signed by Judge Jane Magnus-Stinson on 11/2/2015. Copy sent to Plaintiff via US Mail. (GSO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JESSE J. STEWART,

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Plaintiff,
v.
CHARLES DANIELS, et al.,
Defendants.

Case No. 2:15-cv-00309-JMS-WGH

Entry Granting Motion to Proceed In Forma Pauperis, Dismissing Complaint,
and Directing Further Proceedings
I.

Motion to Proceed In Forma Pauperis

The plaintiff’s motion to proceed in forma pauperis [dkt. 5] is granted. It is not feasible to
assess an initial partial filing fee at this time. Notwithstanding the foregoing ruling, the plaintiff
still owes the $350.00 filing fee. “All [28 U.S.C.] § 1915 has ever done is excuse pre-payment of
the docket fees; a litigant remains liable for them, and for other costs, although poverty may make
collection impossible.” Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996).
II.

Motion to Amend

The plaintiff’s motion to amend [dkt. 4] is granted to the extent that the claim for relief of
costs and attorney fees, if any, and the jury demand are noted.
III.

Screening

The plaintiff is a federal prisoner incarcerated at the Terre Haute USP. He alleges that this
lawsuit is brought under the theory set forth in Bivens v. Six Unknown Named Agents, 403 U.S.
388 (1971). He alleges violations of his Fourth, Fifth, and Eighth Amendment rights. The plaintiff
also alleges that his claims are brought under the Little Tucker Act, 28 U.S.C. § 1491(a)(1), and
the Indiana Tort Claims Act.

The plaintiff names as defendants: 1) Warden Charles Daniels; 2) One Unknown
Corrections Officer; and 3) Richard W. Schott, Regional Counsel of the Bureau of Prisons
(“BOP”).
The complaint is subject to the screening requirement of 28 U.S.C. § 1915A(b). This statute
directs that the Court dismiss a complaint or any claim within a complaint that “(1) is frivolous,
malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief
from a defendant who is immune from such relief.” Id.
The plaintiff alleges that on April 13, 2015, an unknown corrections officer unlocked the
combination lock on the plaintiff’s locker in his cell and told another inmate that he could have
everything that was in the locker. The plaintiff was in the hospital at the time. He alleges this was
done without his permission and without notice. The property given away included clothing,
postage stamps, and commissary items, all valued at $228.29. 1 He alleges that the defendants have
refused to compensate him for the property. He seeks judgment in that amount, plus interest and
costs.
1. Bivens Constitutional Claims
Bivens “authorizes the filing of constitutional tort suits against federal officers in much the
same way that 42 U.S.C. § 1983 authorizes such suits against state officers . . . .” King v. Federal
Bureau of Prisons, 415 F.3d 634, 636 (7th Cir. 2005); see also Abella v. Rubino, 63 F.3d 1063,
1065 (11th Cir. 1995) (noting that Bivens created a remedy against federal officers acting under
color of federal law analogous to the Section 1983 action against state officials).

1

It is notable that the plaintiff seeks relief totaling less than the amount of the filing fee for this
case. By filing this action, he has assumed a debt greater than his potential greatest recovery.

The plaintiff’s constitutional claims may only be asserted against the federal actors who
personally participated in the alleged wrongdoing. “[A] defendant cannot be liable under Bivens
on the basis of respondeat superior or supervisory liability, rather, there must be individual
participation and involvement by the defendant.” Arnett v. Webster, 658 F.3d 742, 757 (7th Cir.
2011). There are no allegations of personal participation asserted against defendants Warden
Daniels or Richard Schott. Thus, any Bivens claims are dismissed as to these two defendants for
failure to state a claim upon which relief can be granted.
The plaintiff does not identify the individual who allegedly gave away his property. Any
claim asserted against the “one unknown corrections officer” is dismissed because “it is pointless
to include lists of anonymous defendants in federal court; this type of placeholder does not open
the door to relation back under Fed.R.Civ.P. 15, nor can it otherwise help the plaintiff.” Wudtke v.
Davel, 128 F.3d 1057, 1060 (7th Cir. 1997) (internal citations omitted). More importantly,
however, the constitutional claims against the officer, even if he were later identified through
discovery, must be dismissed on the merits as discussed in the following paragraphs.
Any Fourth Amendment claim must be dismissed for failure to state a claim upon which
relief can be granted because a prison inmate has “simply no reasonable expectation of privacy in
his prison cell that would protect him under the Fourth Amendment from unreasonable searches
and seizures of his property.” King v. McCarty, 781 F.3d 889, 899 (7th Cir. 2015).
There are no facts alleged in the complaint that support a violation of the plaintiff’s Eighth
Amendment rights to avoid “cruel and unusual punishment,” so that claim must also be dismissed
for failure to state a claim upon which relief can be granted.
The plaintiff’s Fifth Amendment due process claim based on the alleged taking of his
property is dismissed for failure to state a claim upon which relief can be granted because the

prison grievance process and the Federal Tort Claims Act (“FTCA”) provide adequate
postdeprivation remedies to challenge the seizure of property. See Jones v. Burton, 173 Fed.Appx.
520, 522 (7th Cir. March 29, 2006) (citing Hudson v. Palmer, 468 U.S. 517, 533 (1984)). “The
adequacy of a postdeprivation remedy does not turn on the plaintiff’s satisfaction with the
outcome.” Id. See also Mitchell v. U.S., 215 F.3d 1330 (Table), 2000 WL 566746 (7th Cir. May 9,
2000) (a postdeprivation remedy exists under the FTCA).
2. Tucker Act Claims
The Tucker Act, codified at the citation identified in the complaint, 28 U.S.C. § 1491(a)(1),
grants the Court of Federal Claims exclusive jurisdiction for damage claims against the United
States which exceed $10,000. The plaintiff’s claim is for $228.29. The “Little Tucker Act” is
codified at 28 U.S.C. § 1346(a)(2) and it confers jurisdiction on district courts for claims against
the United States not exceeding $10,000. The Little Tucker Act, however, does not confer
jurisdiction over claims sounding in tort. 28 U.S.C. § 1346(a)(2) (conferring jurisdiction on district
courts for civil claims against the United States “in cases not sounding in tort”). Therefore, the
plaintiff’s conversion tort claim under The Little Tucker Act is dismissed for failure to state a
claim upon which relief can be granted.

3. Indiana Tort Claims Act
To the extent the plaintiff seeks to bring only a state law tort claim of conversion under the
Indiana Tort Claims Act, this Court lacks subject matter jurisdiction.
This lawsuit could be construed as a suit under the Federal Tort Claims Act [FTCA] . . .
which “permits claims based upon misconduct which is tortious under state law. 28 U.S.C.
§§ 1346(6), 2680.” Sisk v. United States, 756 F.2d 497, 500 n.4 (7th Cir. 1985). The plaintiff has
not raised the FTCA, however, as a source of remedy for his claim. He may not have asserted a
claim under the FTCA because he did not file the proper administrative claims before bringing this
action. In addition, the only proper defendant in an action brought pursuant to the FTCA is the
United States itself. Hughes v. United States, 701 F.2d 56, 58 (7th Cir. 1982). The United States
is not included as a defendant in this case. The failure to name the appropriate defendant requires
the dismissal of any potential FTCA claim. See Myles v. United States, 416 F.3d 551, 552 (7th Cir.
2005) (noting that “even pro se litigants are masters of their own complaints and may choose who
to sue-or not to sue”).
IV. Further Proceedings
For the reasons discussed above, the complaint is dismissed for failure to state a claim
upon which relief can be granted pursuant to 28 U.S.C. § 1915A. The plaintiff shall have
through December 1, 2015, in which to show cause why this action should not be dismissed for
failure to state a claim upon which relief can be granted. Luevano v. Wal-Mart Stores, Inc., 722
F.3d 1014, 1022 (7th Cir. 2013) (plaintiffs should be given at least an opportunity to amend or to
respond to an order to show cause before a case is “tossed out of court without giving the applicant
any timely notice or opportunity to be heard to clarify, contest, or simply request leave to amend.”).

If the plaintiff fails to show cause or seek leave to amend, the action will be dismissed for
the reasons set forth in this Entry.
IT IS SO ORDERED.
November 2, 2015
Date: __________________
Distribution:
Jesse J. Stewart
#08673-030
Terre Haute USP
Inmate Mail/Parcels
P. O. Box 33
Terre Haute, IN 47808

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana