STEWART v. DANIELS et al

Filing 9

Entry Dismissing Amended Complaint and Directing Entry of Final Judgment - The plaintiff has not shown that the Court's analysis was incorrect nor has he provided any legally sufficient basis for allowing his claims to proceed. Therefore, for the reasons set forth in the Entry of November 2, 2015, the complaint and amended complaint are dismissed for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915A. This dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g). Judgment consistent with this Entry shall now issue. (See Entry) Signed by Judge Jane Magnus-Stinson on 11/24/2015. Copy sent to Plaintiff via US Mail. (GSO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JESSE J. STEWART,
Plaintiff,
v.
CHARLES DANIELS, et al.,
Defendants.

)
)
)
)
)
)
)
)

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

Entry Dismissing Amended Complaint and Directing Entry of Final Judgment
The complaint filed on October 6, 2015, alleges that while the plaintiff was hospitalized
and having surgery in April of 2015, an unknown correctional officer unlocked his prison locker
and allowed another inmate to have all of the plaintiff’s property valued at $228.29. He alleges
that the defendants violated his rights under The Tucker Act, The Little Tucker Act, the Indiana
Tort Claims Act, and several constitutional amendments under Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971). In its Entry of November 2, 2015, the Court discussed each of the
plaintiff’s theories and named defendants, and concluded that the complaint failed to state a claim
upon which relief can be granted. The plaintiff was given an opportunity to show cause why the
action should not be dismissed.
The plaintiff has timely filed a response and an amended complaint, however, he merely
repeats the same claims in those filings. He argues that the Warden has a contract with the plaintiff,
as set forth in Bureau of Prison (“BOP”) policies, to protect his personal property as long as he
used a combination lock on his locker. This contention does not change any of the Court’s analyses
of the plaintiff’s claims because there is no actual contract between the Warden and the plaintiff,
and violations of regulations or policies do not rise to the level of a Bivens violation. See generally

Bradich ex rel. Estate of Bradich v. City of Chicago, 413 F.3d 688, 690 (7th Cir. 2005) (the
violation of policy is not an independent violation of the Constitution); Gregory v. Chamness, 2013
WL 6230019 (S.D. Ill. Dec. 2, 2013) (“The violation of a Bureau of Prisons policy does not, by
itself, constitute a constitutional violation actionable under Bivens, which only permits suits for
constitutional violations.”).
The plaintiff has not shown that the Court’s analysis was incorrect nor has he provided any
legally sufficient basis for allowing his claims to proceed. Therefore, for the reasons set forth in
the Entry of November 2, 2015, the complaint and amended complaint are dismissed for failure
to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915A. This dismissal
counts as a strike pursuant to 28 U.S.C. § 1915(g). Judgment consistent with this Entry shall now
issue.
IT IS SO ORDERED.

November 24, 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