Muir v. United States Transportation Security Administration

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

MICHAEL GIBSON MUIR, )

)

Plaintiff, )

)

v. ) Case No. 1:20-cv-01280

)

UNITED STATES TRANSPORTATION )

SECURITY ADMINISTRATION; DAVID )

P. PEKOSKE, in his individual capacity; )

L3HARRIS TECHNOLOGIES, INC.; )

ALLEGIANT AIR, LLC; CHAD F. WOLF, )

in his official capacity as United States )

Department of Homeland Security; )

)

Defendants. )

ORDER AND OPINION

This Matter is before the Court on multiple motions to dismiss. Defendant

Allegiant Air, LLC, has filed a Motion for Judgment on the Pleadings Pursuant to

Rule 12(c) and Motion to Dismiss for Failure to State a Claim Pursuant to Rule

12(b)(6). (Docs. 30, 31). Defendants United States Transportation Security

Administration (TSA), David P. Pekoske, and Chad. F. Wolf (collectively, “Federal

Defendants”) have filed a joint Motion to Dismiss (doc. 33); Defendant David P.

Pekoske has also filed, in his individual capacity, a separate Motion to Dismiss for

Failure to State a Claim (doc. 34). And Defendant L3Harris Technologies, Inc. (L3),

has filed a Motion to Dismiss. (Doc. 37). All motions have been fully briefed and are

therefore ripe for review.

BACKGROUND1

Plaintiff claims he was psychologically and physically injured as a result of two

encounters with Defendant TSA. (Doc. 12). On August 9, 2018, Defendant presented

at the Phoenix-Mesa Gateway Airport in Mesa, Arizona, for mandatory pre-flight

screening. (Doc. 12 at 5). While Plaintiff was in the “hands-up” position during the

body scan portion of the screening, his hernia at his right groin became symptomatic;

TSA officials informed Plaintiff that the body scan revealed an anomaly at Plaintiff’s

right groin, necessitating a pat-down search. (Doc. 12 at 5–7). Plaintiff ordered the

TSA officials not to touch his right groin because he was experiencing a serious

medical emergency and “being touched at his right groin would result in extreme

physical pain and could endanger his life.” (Doc. 12 at 7). The TSA officials persisted,

and Plaintiff—against his will—submitted to the pat-down search. (Doc. 12 at 7).

On August 12, 2018, Plaintiff presented at the Peoria International Airport in

Peoria, Illinois, for mandatory pre-flight screening. (Doc. 12 at 8). Plaintiff’s hernia

again became symptomatic during the body scan, and TSA officials again required a

physical pat-down of Plaintiff’s right groin. (Doc. 12 at 8–11). Plaintiff again ordered

the TSA officials not to touch his right groin because he was experiencing a serious

medical emergency and physical contact “would result in immediate and extreme

physical pain.” (Doc. 12 at 10). He offered to instead lower his pants and underwear

to show the TSA officials his hernia; the TSA officials declined and required the pat-

1 The facts in this section are derived from the First Amended Complaint and are

taken as true in resolving the instant motions.

down search. Plaintiff again reluctantly submitted to the pat down, desperate to end

the interaction. (Doc. 12 at 11). As a result of these two incidents, Plaintiff suffers

“severe ongoing psychological distress and disturbing physical manifestations.” (Doc.

12 at 11).

LEGAL STANDARDS

The various motions for dismissal invoke multiple legal standards.

A. Federal Rules of Civil Procedure 12(b)(6) and 12(c) – Failure to State a Claim

and Judgment on the Pleadings

“A motion for judgment on the pleadings under Rule 12(c) of the Federal Rules

of Civil Procedure is governed by the same standards as a motion to dismiss for failure

to state a claim under Rule 12(b)(6).” BBL, Inc. v. City of Angola, 809 F.3d 317, 325

(7th Cir. 2015) (quoting Adams v. City of Indianapolis, 742 F.3d 720, 727–28 (7th Cir.

2014)). To survive dismissal pursuant to Rule 12(b)(6), the complaint must contain a

short and plain statement of the plaintiff’s claim sufficient to plausibly demonstrate

entitlement to relief. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555–57 (2007). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A

plaintiff is not required to anticipate defenses or plead extensive facts or legal

theories; rather, the complaint need only contain enough facts to present a story that

holds together. Twombly, 550 U.S. at 570; Swanson v. Citibank, N.A., 614 F.3d 400,

404 (7th Cir. 2010). The Seventh Circuit has consistently noted the essential function

of Rule 8(a)(2) is to put the defendant on notice. Divane v. Nw. Univ., 953 F.3d 980,

987 (7th Cir. 2020) (“A complaint must give the defendant fair notice of what . . . the

claim is and the grounds upon which it rests.” (internal quotation marks omitted)).

On review of a Rule 12(b)(6) motion, the Court construes the complaint in the

light most favorable to the plaintiff. United States ex rel. Berkowitz v. Automation

Aids, Inc., 896 F.3d 834, 839 (7th Cir. 2018). This means the Courts accepts all well-

pleaded factual allegations as true and draws all reasonable inferences from those

facts in favor of the plaintiff. Id. Allegations that are, in reality, legal conclusions are

not taken as true and cannot survive a Rule 12(b)(6) challenge. McReynolds v. Merrill

Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir. 2012). Moreover, pro se complaints

must be construed liberally and held to a “less stringent standard than formal

pleadings drafted by lawyers.” Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015).

(quoting Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011)).

B. Federal Rule of Civil Procedure 12(b)(1) – Subject Matter Jurisdiction

“Federal courts are courts of limited jurisdiction. They possess only that power

authorized by Constitution and statute, which is not to be expanded by judicial

decree.” United States v. Alkaramla, 872 F.3d 532, 534 (7th Cir. 2017) (quoting

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Whether a case

falls within the limited jurisdiction of the federal courts is both a constitutional and

a statutory question. “[T]he Constitution imposes a ceiling, albeit a high one, on the

potential jurisdiction of the federal courts” by “permit[ting] federal courts to hear only

certain claims.” Int’l Union of Operating Eng’rs, Loc. 150, AFL-CIO v. Ward, 563 F.3d

276, 280–81 (7th Cir. 2009); see also U.S. Const. art. III, § 2, cl. 1. Congress has the

authority “to further refine the actual scope of federal jurisdiction” because federal

jurisdiction must be exercised pursuant to a statutory grant. Id. Thus both the

Constitution and federal statutory law “must authorize a federal court to hear a given

type of case” for federal jurisdiction to lie. Id. at 280.

There are two types of jurisdictional challenges: facial and factual. “Facial

challenges require only that the court look to the complaint and see if the plaintiff

has sufficiently alleged a basis of subject matter jurisdiction.” Apex Digit., Inc. v.

Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009) (emphasis omitted). “In

reviewing a facial challenge, the court must accept all well-pleaded factual allegations

as true and draw all reasonable inferences in favor of the plaintiff.” Silha v. ACT,

Inc., 807 F.3d 169, 173 (7th Cir. 2015). “In contrast, a factual challenge lies where the

complaint is formally sufficient but the contention is that there is in fact no subject

matter jurisdiction.” Apex Digit., 572 F.3d at 444 (internal quotation marks omitted).

In such cases, “[t]he district court may properly look beyond the jurisdictional

allegations of the complaint and view whatever evidence has been submitted on the

issue to determine whether in fact subject matter jurisdiction exists.” Id. In any

event, the plaintiff “bears the burden of establishing that the jurisdictional

requirements have been met.” Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell,

770 F.3d 586. 588–89 (7th Cir. 2014).

DISCUSSION

The Court will address each motion to dismiss in turn.

I. Defendant Allegiant Air’s Motion to Dismiss

Defendant Allegiant Air argues Plaintiff’s allegations against it, set forth in

Counts XV–XX of the First Amended Complaint (doc. 12 at 20–24), are time-barred

and fail to state a claim. (Doc. 31 at 5). Plaintiff’s Response argues (1) his claims

survive scrutiny under Rule 12(b)(6) and (2) the discovery rule—or, in the alternative,

Defendant’s fraudulent concealment of his claims—operated to toll the statute of

limitations, rendering his claims timely. (Doc. 36 at 13–30). The Court granted

Defendant Allegiant Air leave to file a Reply, which argued, inter alia, much of

Plaintiff’s Response should be disregarded as an impermissible attempt to amend the

operative Complaint. (Doc. 41 at 2–3).

While it is indeed “axiomatic that the complaint may not be amended by the

briefs in opposition to a motion to dismiss” Car Carriers, Inc. v. Ford Motor Co., 745

F.2d 1101, 1107 (7th Cir. 1984), it is likewise settled law that “facts alleged . . . in a

brief in opposition to a motion to dismiss may be considered when evaluating the

sufficiency of a complaint so long as they are consistent of the allegations in the

complaint,” Smith v. Dart, 803 F.3d 304, 311 (7th Cir. 2015) (internal quotation

marks omitted). Furthermore, “a complaint need not anticipate and overcome

affirmative defenses, such as the statute of limitations.” Amin Ijbara Equity Corp. v.

Vill. of Oak Lawn, 860 F.3d 489, 492 (7th Cir. 2017) (internal quotation marks

omitted). Rather, “dismissal at this early stage is appropriate when the complaint

alleges facts sufficient to establish that the suit is indeed tardy.” Id.; see also Am.

Family Mut. Ins. Co. v. Krop, 2018 IL 122556, ¶ 21, 120 N.E.3d 982, 988, reh’g denied

(Nov. 26, 2018) (“When a complainant should have discovered an injury is a question

of fact, but this court can determine when the limitations period began if the facts are

undisputed and only one answer is reasonable.”).2 With these principles in mind, the

Court will consider “new” facts relating to the statute-of-limitations dispute that are

consistent with the allegations in the First Amended Complaint to determine

whether Plaintiff has “plead[ed] himself out of court,” see Cancer Found., Inc. v.

Cerberus Cap. Mgmt., LP, 559 F.3d 671, 674–75 (7th Cir. 2009).

A. Defendant Allegiant Air is Entitled to Judgment on the Pleadings with

Respect to Counts XV–XVII Because They are Untimely

Plaintiff’s claims against Defendant Allegiant Air sound in tort3—specifically,

personal injury—and the events giving rise to those claims occurred on August 9 and

12, 2018. (See doc. 12 at 5–11, 20–24). Illinois has a two-year statute of limitations

2 “Under the familiar rule of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct.

817, 82 L. Ed. 1188 (1938), we apply Illinois substantive law to resolve this question.”

Hollander v. Brown, 457 F.3d 688, 692 (7th Cir. 2006) (citing Guaranty Trust v. York,

326 U.S. 99, 110 (1945) (holding statutes of limitations are considered substantive

rather than procedural matters for purposes of the Erie doctrine)).

3 Though couched in terms of various constitutional rights to privacy, due process,

and freedom from unreasonable searches, Counts XV–XX sound in tort. Counts XV

and XVIII allege negligence (doc. 12 at 21, 22), Counts XVI and XIX allege negligent

infliction of emotional distress (NIED) (doc. 12 at 21, 23), and Counts XVII and XX

allege intentional infliction of emotional distress (IIED) (doc. 12 at 22, 24). It appears

Plaintiff claims Defendant Allegiant Air committing the alleged torts by infringing

various constitutional rights. While a claim could conceivably sound in both tort and

constitutional law, “[m]ost rights secured by the Constitution are protected only

against infringement by governments, so . . . the conduct allegedly causing the

deprivation of a federal right [must] be fairly attributable to the State.” Listecki v.

Official Comm. of Unsecured Creditors, 780 F.3d 731, 741 (7th Cir. 2015) (internal

quotation marks omitted). Both the First Amended Complaint and Plaintiff’s

Response fail to explain how the actions of Defendant Allegiant Air, a private

corporation, may be fairly attributable to a state government or to the federal

government. Rather, Plaintiff’s Response only discusses tort. The Court will therefore

treat Plaintiff’s claims as tort claims, not constitutional claims.

for personal injury claims. See 735 ILCS 5/13-202.4 Yet, Defendant Allegiant Air was

not named in this lawsuit until Plaintiff filed his First Amended Complaint on

September 4, 2020, more than two years after the August 2018 events giving rise to

Plaintiff’s claims and therefore outside the limitations period.

1. Neither the Discovery Rule nor the Illinois Fraudulent

Concealment Defense Toll the Statute of Limitations

Plaintiff first argues the limitations clock was tolled by operation of the

discovery rule. (Doc. 36 at 13–15). According to Plaintiff, he did not discover he was

injured “until the sudden and severe onset of symptoms of post-traumatic stress,

including painful involuntary movements, panic attacks, paranoia and severe

emotional distress brought on by the unwanted and unwelcome entry of the menacing

presence [he] can only describe as the Shadow into his psyche in August 2019.” (Doc.

36 at 13). He therefore argues the limitations period does not expire until sometime

in August 2021. (Doc. 36 at 14). He also argues his duty to inquire whether he had a

legal cause of action could have begun on June 6, 2019, when he had an encounter

with TSA that did not result in a pat-down search. (Doc. 36 at 14–15). In support of

4 As some events giving rise to Plaintiff’s claims against Defendant Allegiant Air

occurred in Arizona, there is a potential choice-of-law issue. However, neither party

has identified a relevant conflict of laws—indeed, both Illinois and Arizona have a

two-year statute of limitations for personal injury claims, Ariz. Rev. Stat. Ann. § 12-

542—so the Court will apply the substantive law of Illinois where appropriate. McCoy

v. Iberdrola Renewables, Inc., 760 F.3d 674, 684 (7th Cir. 2014) (“Federal courts

hearing state law claims under diversity or supplemental jurisdiction apply the forum

state’s choice of law rules to select the applicable state substantive law.”); J.S.T. Corp.

v. Foxconn Interconnect Tech. Ltd., 965 F.3d 571, 577 n.1 (7th Cir. 2020) (“[W]hen

neither party raises a conflict of law issue in a diversity case, a federal court should

apply the law of the state in which it sits.”).

his argument, Plaintiff cites Knox Coll. v. Celotex Corp., 88 Ill. 2d 407, 415, 430

N.E.2d 976, 980 (1981).

In Knox. Coll., the Illinois Supreme Court explained the discovery rule as

follows:

The statute starts to run when a person knows or reasonably should

know of his injury and also knows or reasonably should know that it was

wrongfully caused. At that point the burden is upon the injured person

to inquire further as to the existence of a cause of action.

Id. at 416 (quoting Witherell v. Weimer, 85 Ill. 2d 146, 156, 421 N.E.2d 869, 874

(1981)). In making this determination, the court must first consider whether the

alleged injury was the result of a “sudden, traumatic event,” or became apparent only

after a “late or ‘insidious’ onset.” Hollander v. Brown, 457 F.3d 688, 692 (7th Cir.

2006). “[A] ‘sudden, traumatic event’ is one that, because of its force or violence,

permits the law to presume that the event immediately placed the plaintiff on notice

of her injury and a right of action.” Id. “In insidious onset cases, by contrast, the

nature of the event does not permit the plaintiff to learn of her injury, or of the causal

link between the defendant’s conduct and her injury, until some time after the event.”

Id. Examples of insidious onset or latent injuries include those resulting from medical

malpractice or exposure to toxic products such as asbestos. Golla v. Gen. Motors

Corp., 167 Ill. 2d 353, 366, 657 N.E.2d 894, 900 (1995).

“[W]here the plaintiff’s injuries are caused by a sudden traumatic event, the

plaintiff’s cause of action accrues when the injury occurred.” Golla, 167 Ill. 2d at 361.

This is because “the nature and circumstances surrounding a traumatic event puts

an injured party on notice that actionable conduct might be involved,” id. at 363, thus

triggering the plaintiff’s duty to investigate. Moreover, a plaintiff’s “alleged failure to

fully discover the nature of his injuries” is insufficient to toll the limitations clock, for

“[t]here is no requirement that a plaintiff must know the full extent of his or her

injuries before suit must be brought under the applicable statute of limitations.” Doe

v. Hastert, 2019 IL App (2d) 180250, ¶ 34, appeal denied, 135 N.E.3d 558 (Ill. 2019)

(internal quotation marks omitted). Conversely, in cases involving insidious onset or

latent injuries, the discovery rule tolls “the running of the limitations period until the

plaintiff either knew or reasonably should have known that he was injured and that

the injury was wrongfully caused.” Golla, 167 Ill. 2d at 366.

In Hastert, the plaintiff filed a lawsuit alleging battery, false imprisonment,

NIED, and IIED based on a sexual assault which occurred while the plaintiff was a

minor; however, the plaintiff did not file suit until more than 30 years after the claim

accrued.5 2019 IL App (2d) 180250, ¶¶ 11, 13. The defendant moved for dismissal,

arguing the claims were time-barred; the plaintiff argued, inter alia, he did not fully

realize “his injuries and their relation to [defendant’s] sexual assault on him as a

child” until much later. Id. ¶ 23. The Illinois Appellate Court rejected the plaintiff’s

argument, concluding the plaintiff was aware of the abuse as it happened and his

failure to realize the extent of his injuries within the limitations period was

insufficient to toll the clock. Id. ¶¶ 33, 34; see also Parks v. Kownacki, 193 Ill. 2d 164,

5 The same two-year statute of limitations applicable here also applied in Hastert.

2019 IL App (2d) 180250, ¶ 28. But because the plaintiff was a minor when the

actionable conduct occurred, his claims did not accrue until his eighteenth birthday,

meaning the statute of limitations expired two years thereafter. See 735 ILCS 5/13-

211(a).

178, 737 N.E.2d 287, 295 (2000) (“Because . . . plaintiff was aware of both the cause

and some injury, we hold that plaintiff’s failure to understand the connection between

the abuse and other injuries does not toll the statute of limitations.”); Clay v. Kuhl,

189 Ill. 2d 603, 611, 727 N.E.2d 217, 222 (2000) (“We do not believe that the plaintiff’s

alleged failure to fully discover the nature of her injuries is sufficient to delay the

running of the limitations period.”); Golla, 167 Ill. 2d at 364 (“[O]ur cases adhere to

the general rule that the limitations period commences when the plaintiff is injured,

rather than when the plaintiff realizes the consequences of the injury or the full

extent of her injuries.”).

By arguing he was unaware the August 2018 incidents were abnormal until he

had a noneventful interaction with TSA in June 2019, Plaintiff seems to assert his

injuries fall into the category of cases involving insidious onset or latent injuries. The

Court disagrees. Plaintiff’s First Amended Complaint and Response describe two

discrete, distressing events. Similar to Hastert, Parks, Golla, and Clay, there is no

doubt Plaintiff was aware of the alleged misconduct when it occurred, and his

allegations demonstrate he believed he was injured at that time.6 Plaintiff alleges he

experienced immediate physical pain during the pat downs and felt humiliated and

desperate to escape the TSA checkpoints on both occasions (docs. 36 at 4; 12 at 6–11).

Additionally, Plaintiff warned the TSA agents he would experience such pain if

6 Though Plaintiff may arguably not have believed the alleged misconduct actionable

at the time, “[t]he limitations period begins running even if the plaintiff does not

know that the misconduct was actionable.” Parks, 193 Ill. 2d at 176 (citing Knox

College, 88 Ill. 2d at 415).

patted down on August 12, 2018; the fact that this warning followed a nearly identical

scenario on August 8 suggests Plaintiff felt pain during the August 8 pat down. That

Plaintiff did not realize the full extent of his psychological injuries until the onset of

symptoms in August 2019 does not mean he did not know he was injured in August

2018.

The Court concludes this case falls in the sudden, traumatic event category. A

reasonable person experiencing the type of trauma and injuries described by Plaintiff

would be on notice “that actionable conduct might be involved” at the time the

traumatic event occurred. See Golla, 167 Ill. 2d at 363. As Plaintiff was clearly aware

of both the cause and some extent of his alleged injuries in August 2018, the Court

sees no basis to stray from the Illinois Supreme Court’s holdings in Golla, Parks, and

Clay. Plaintiff’s discovery rule argument fails.

Plaintiff next argues fraudulent concealment is a “relevant factor.”7 “If a

person liable to an action fraudulently conceals the cause of such action from the

knowledge of the person entitled thereto, the action may be commenced at any time

within 5 years after the person entitled to bring the same discovers that he or she has

such cause of action, and not afterwards.” 735 ILCS 5/13-215. However, where the

7 The Court presumes Plaintiff is arguing fraudulent concealment as a defense to the

two-year statute of limitations. “Fraudulent concealment, as codified in section 13-

215, is not a cause of action in and of itself; rather, it acts as an exception to the time

limitations imposed on other, underlying causes of action.” Wisniewski v. Diocese of

Belleville, 406 Ill. App. 3d 1119, 1154, 943 N.E.2d 43, 72–73 (2011). At any rate, the

First Amended Complaint does not allege an affirmative claim for fraudulent

concealment against Defendant Allegiant Airlines, and Plaintiff may not use his

Response to assert new claims. Car Carriers, 745 F.2d at 1107.

alleged injury is the result of a sudden, traumatic event, section 13-215 does not toll

the statute of limitations because the injured party is on notice of his or her right to

sue at the time of injury. Lowe v. Ford Motor Co., 313 Ill. App. 3d 418, 422, 730 N.E.2d

58, 61 (2000). Because Plaintiff’s alleged injuries were the result of sudden, traumatic

events, he cannot invoke section 13-215 to toll the statute of limitations. Indeed,

Illinois “courts have been clear that section 13-215 is applicable only where the

concealment of a cause of action consisted of affirmative acts or representations that

prevent the discovery of the cause of action.” Id. (emphasis in original). The Court has

concluded Plaintiff should have been aware of his injuries and their wrongful cause

at the time he was injured in August 2018; any finding Defendant Allegiant Air

thereafter prevented discovery of Plaintiff’s claims would be a logical impossibility.

2. The First Amended Complaint Partially Relates Back to the

Original Complaint

Defendant Allegiant Air argues the amendments in the First Amended

Complaint adding it as a defendant and the several claims against it do not relate

back to the original Complaint, which was filed on July 31, 2020, within the

applicable two-year limitations period. (Doc. 31 at 7–8). Alternatively, Defendant

Allegiant Air argues only the claims based on the August 12 screening can relate back

because the August 9 screening, a wholly separate incident, was not detailed in the

original Complaint. (Doc. 31 at 9 n.5). Curiously, Plaintiff declined to respond to

Defendant Allegiant Air’s arguments, maintaining the argument was premature and

misplaced. (Doc. 36 at 16).

Pursuant to Federal Rule of Civil Procedure 15(c)(1)(C):

An amendment to a pleading relates back to the date of the original

pleading when . . . the amendment changes the party or the naming of

the party against whom a claim is asserted, if Rule 15(c)(1)(B) is

satisfied and if, within the period provided by [Federal Rule of Civil

Procedure] 4(m) for serving the summons and complaint, the party to be

brought in by amendment . . . (i) received such notice of the action that

it will not be prejudiced in defending on the merits; and (ii) knew or

should have known that the action would have been brought against it,

but for a mistake concerning the proper party’s identity.

See also Joseph v. Elan Motorsports Techs. Racing Corp., 638 F.3d 555, 559–60 (7th

Cir. 2011). Rule 15(c)(1)(B) requires the proposed amendment to assert “a claim or

defense that arose out of the conduct, transaction, or occurrence set out—or

attempted to be set out—in the original pleading.” And Rule 4(m) sets a 90-day

deadline for service of process.

The Seventh Circuit has yet to decide whether Rule 15(c)(1)(C) or its Illinois

counterpart, 735 ILCS 5/2-616(d), applies when a district court in Illinois is sitting in

diversity or exercising supplemental jurisdiction. Nevertheless, both the Seventh

Circuit and Illinois courts have indicated the two rules are essentially identical, and

Illinois courts look to federal jurisprudence on Rule 15(c)(1)(C) for persuasive

authority. Springman v. AIG Mktg., Inc., 523 F.3d 685, 688 (7th Cir. 2008); Borchers

v. Franciscan Tertiary Province of Sacred Heart, Inc., 2011 IL App (2d) 101257, ¶¶

42–45, 962 N.E.2d 29, 44–46; Walstad v. Klink, 2018 IL App (1st) 170070, ¶ 19, 105

N.E.3d 1016, 1022.

Plaintiff’s claims against Defendant Allegiant Air can be separated into two

sets: one set of claims (negligence, NIED, and IIED) for each TSA encounter at issue.

The original Complaint only detailed the August 12 encounter with TSA in Illinois;

it did not allege any facts pertaining to the August 9 encounter in Arizona. (See doc.

1 at 4–7). Though the two encounters with TSA were similar and resulted in similar

injuries, they were two separate encounters on separate days in different states and

presumably involving different TSA agents; they therefore cannot be characterized

as the same transaction or occurrence. See Mayle v. Felix, 545 U.S. 644, 659 (2005).

Consequently, Rule 15(c)(1)(B) is only satisfied with respect to the set of claims based

on the August 12 encounter in Illinois (Counts XVIII–XX). The set of claims based on

the August 9 in Arizona encounter (Counts XV–XVII) cannot relate back to the

original Complaint, and Defendant Allegiant Air is therefore entitled to judgment on

the pleadings with respect to those claims.

As for the set of claims based on the August 12 encounter, the operative

questions thus become (1) whether Defendant Allegiant Air knew or should have

known within the period provided by Rule 4(m) for serving the summons and

complaint that the claims “would have been brought against it, but for a mistake

concerning the proper party’s identity” and (2) whether it would be prejudiced by

defending the claims on the merits. Rule 15(c)(1)(C); Joseph, 638 F.3d at 559–60

(noting the proper emphasis is on the defendant’s knowledge of the plaintiff’s intent

to sue it, not the plaintiff’s carelessness or mistake in naming the proper defendant).8

8 Inexplicably, Defendant Allegiant Air urges the Court to determine the

amendments do not relate back because Plaintiff made a deliberate choice not to sue

it within the limitations period, citing Krupski v. Costa Crociere S. p. A., 560 U.S.

538, 549 (2010) (“We agree that making a deliberate choice to sue one party instead

of another while fully understanding the factual and legal differences between the

two parties is the antithesis of making a mistake concerning the proper party’s

Respecting the first question, the 90-day period under Rule 4(m) began after Plaintiff

filed the original Complaint on July 31, 2020. Defendant Allegiant Air attained actual

knowledge of Plaintiff’s intent to sue it no later than the date on which it was served

with the First Amended Complaint: September 14, 2020, forty-five days after the

Complaint was filed. (See doc. 14). Defendant Allegiant Air thus had adequate notice

of Plaintiff’s claims against it within the requisite 90-day timeframe. And Defendant

Allegiant Air makes no argument as to the second question, likely because it cannot

reasonably claim prejudice here; the instant Motion also challenges the substance of

Plaintiff’s claims, demonstrating Defendant Allegiant Air can clearly defend this

lawsuit on the merits. The Court therefore finds the set of claims based on the August

12 encounter, Counts XVIII–XX of the First Amended Complaint, relate back to the

identity.”), and Hall v. Norfolk Southern Ry. Co., 469 F.3d 590, 596 (7th Cir. 2006).

(Doc. 31 at 7–8). The Court, however, went on to flatly reject Defendant Allegiant

Air’s very argument in Krupski in no uncertain terms:

We disagree, however, with respondent’s position that any time a

plaintiff is aware of the existence of two parties and chooses to sue the

wrong one, the proper defendant could reasonably believe that the

plaintiff made no mistake. The reasonableness of the mistake is not

itself at issue. As noted, a plaintiff might know that the prospective

defendant exists but nonetheless harbor a misunderstanding about his

status or role in the events giving rise to the claim at issue, and she may

mistakenly choose to sue a different defendant based on that

misimpression. That kind of deliberate but mistaken choice does not

foreclose a finding that Rule 15(c)(1)(C)(ii) has been satisfied.

Id. (emphasis added). Further, the Seventh Circuit has expressly recognized Hall is

no longer controlling precedent after of Krupski. Joseph, 638 F.3d at 559 (“[T]he

Supreme Court in Krupski . . . changed what we and other courts had understood[ ]

in Hall[.]”). Counsel for Defendant Allegiant Air are reminded of their obligations

under Federal Rule of Civil Procedure 11. The Court will not tolerate deliberate

attempts to mislead.

original Complaint, which was timely under the applicable two-year statute of

limitations.

B. Plaintiff Failed to State a Claim Against Defendant Allegiant Air

In the surviving counts, Plaintiff alleges Defendant Allegiant Air committed

negligence, NIED, and IIED. Defendant Allegiant Air argues these claims fail as a

matter of law. (Doc. 31 at 9–19).

1. Plaintiff Cannot Establish Negligence or NIED

In Illinois, a plaintiff alleging negligence must ultimately prove “existence of a

duty, the defendant’s breach of that duty, and that the breach proximately caused the

plaintiff's resulting injuries.” Roh v. Starbucks Corp., 881 F.3d 969, 973 (7th Cir.

2018). Similarly, to establish NIED, a direct-victim plaintiff must ultimately prove

the elements of negligence as well as “emotional distress and . . . a contemporaneous

physical injury or impact.” Schweihs v. Chase Home Fin., LLC, 2016 IL 120041, ¶ 31,

77 N.E.3d 50, 58 (quoting Corgan v. Muehling, 143 Ill. 2d 296, 303, 574 N.E.2d 602,

605 (1991)).

Plaintiff’s negligence and NIED claims in Counts XVIII and XIX are premised

on the notion that Defendant Allegiant Air breached a duty to warn him about TSA’s

screening process, which resulted in physical and emotional damages. (See docs. 12

at 20–21; 36 at 18–27). Specifically, Plaintiff appears to argue he had a special

relationship with Defendant Allegiant Air, which meant Defendant Allegiant Air had

a duty to explain the TSA threat assessment procedures prior to his screening and

warn him that the procedures may result in constitutional violations. (See, e.g., doc.

36 at 22 (“Muir did not seek assistance during the threat assessment process but only

sought fair notice of the process so he could make the decision to avoid the process by

electing not to fly.” (emphasis in original))).

As a general matter, “[a] ‘duty to warn exists where there is unequal

knowledge, actual or constructive [of a dangerous condition], and the defendant[,]

possessed of such knowledge, knows or should know that harm might or could occur

if no warning is given.’ ” Hutchison v. Fitzgerald Equip. Co., Inc., 910 F.3d 1016, 1022

(7th Cir. 2018) (quoting Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186, 766

N.E.2d 1118, 1123 (2002)). And a heightened duty of care can be imposed where a

special relationship exists between the parties. See Iseberg v. Gross, 227 Ill. 2d 78, 87,

879 N.E.2d 278, 284 (2007); Restatement (2d) of Torts §§ 314, 314A (1965).

Historically, there have been four “special relationships” which this and

other courts have recognized, namely, common carrier-passenger,

innkeeper-guest, business invitor-invitee, and voluntary custodian-

protectee. When one of these special relationships exists between the

parties and an unreasonable risk of physical harm arises within the

scope of that relationship, an obligation may be imposed on the one to

exercise reasonable care to protect the other from such risk, if the risk

is reasonably foreseeable, or to render first aid when it is known that

such aid is needed. The existence of one of these four “special

relationships” has typically been the basis for imposing an affirmative

duty to act where one would not ordinarily exist.

Iseberg, 227 Ill. 2d at 88 (internal citations omitted); see also Restatement (2d) of

Torts § 314A (1965). Comment e to § 314A clarifies the duty owed by a common carrier

to a passenger:

The duty in each case is only one to exercise reasonable care under the

circumstances. The defendant is not liable where he neither knows nor

should know of the unreasonable risk, or of the illness or injury. He is

not required to take precautions against a sudden attack from a third

person which he has no reason to anticipate, or to give aid to one whom

he has no reason to know to be ill. He is not required to take any action

where the risk does not appear to be an unreasonable one[.]

Plaintiff’s theory—that this heightened duty of care required Defendant

Allegiant Air to warn him about or explain the TSA threat assessment procedures—

fails for several reasons. First and foremost, not only is it common knowledge that

airline passengers must undergo TSA screening prior to boarding a flight, see e.g.,

United States v. Hartwell, 436 F.3d 174, 181 (3d Cir. 2006) (“It is inconceivable that

Hartwell was unaware that he had to be searched before he could board a plane.”),

but it is required by federal law, 49 U.S.C. § 44901. American jurisprudence generally

imposes knowledge of the law on all litigants. Georgia v. Public.Resource.Org, Inc.,

___ U.S. ___, 140 S. Ct. 1498, 1507 (2020) (“[E]very citizen is presumed to know the

law.”). Any claim Plaintiff was unaware of the requisite TSA screening runs counter

to that principle.

Moreover, though Defendant Allegiant Air was under no duty to warn Plaintiff

of a process required by law, it nevertheless did so in the Allegiant Contract of

Carriage. (Doc. 31-1 at 3, 15).9 Specifically, the Contract of Carriage stated: (1)

“Passengers and their baggage are subject to inspection with an electronic detector

with or without the passenger’s consent or knowledge”; (2) Allegiant would not

9 “[D]ocuments attached to a motion to dismiss are considered part of the pleadings

if they are referred to in the plaintiff’s complaint and are central to his claim.” Burke

v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 505 (7th Cir. 2013) (internal quotation

marks omitted and alteration in original). This rule applies to contracts central to a

plaintiff’s claim but not attached to the complaint. Facebook, Inc. v. Teachbook.com

LLC, 819 F. Supp. 2d 764, 773 (N.D. Ill. 2011). The Court finds it may consider the

Allegiant Contract of Carriage, which is incorporated into Plaintiff’s airline ticket,

without converting the instant Motion into one for summary judgment.

transport any “passenger who refuses to permit the search of his or her person or

property for explosives or a concealed, deadly, or dangerous weapon or article”; and

(3) “All transportation is sold and all carriage is performed subject to compliance with

all applicable laws and governmental regulations, including those of the U.S.

Department of Transportation and the Federal Aviation Administration, many of

which are not specified herein but are nonetheless binding on Carrier and all

passengers.” (Doc. 31-1 at 3, 15).

To the extent Plaintiff argues Defendant Allegiant Air had a duty to warn him

that TSA might engage in actionable misconduct during the screening process, he is

incorrect. “[A common carrier] is not required to take precautions against a sudden

attack from a third person which he has no reason to anticipate[.]” Restatement (2d)

of Torts § 314A cmt. e (1965). Plaintiff does not explain how Defendant Allegiant Air

should have been aware TSA might engage in tortious misconduct during the

screening process. And the Court is aware of no aspect of law which imposes a duty

to warn of unpredictable wrongdoing at the hands of a third party.

Similarly, Plaintiff fails to explain how Defendant Allegiant Air should have

known what the TSA threat assessment procedures entail or that they could

potentially expose or exacerbate Plaintiff’s medical condition. The federal regulations

governing “the operation of TSA security areas emphasize the exclusive control that

the TSA exercises over those areas.” Hogan v. Nw. Airlines, Inc., No. 11-CV-14888,

2013 WL 607852, at *3 (E.D. Mich. Feb. 19, 2013). They “confer an absolute authority

on the TSA personnel within the screening area to the exclusion of all other airport

staff or patrons.” Id.; see also 49 U.S.C. § 44901; 49 C.F.R. §§ 1540.101–1540.117. And

courts have gone so far to characterize the screening area as a purely “federal facility”

wholly separate from the airport in general. Narvaez v. Am. Airlines, Inc., No. 09-

CIV-6397, 2010 WL 5072114, at *2 (S.D.N.Y. Dec. 13, 2010). Given the intentional

exclusion of airlines’ participation in the TSA screening process, the Court cannot

reasonably infer airline personnel possess any knowledge beyond that of an average

person of what the TSA threat assessment procedures entail. Indeed, Plaintiff himself

explains those procedures are sensitive material not generally available, even to this

Court. (Doc. 36 at 20). As there is no reason to believe Defendant Allegiant Air

possessed any unequal knowledge about the TSA threat assessment procedures,

there is no basis to impose a duty to explain those procedures to Plaintiff or explain

how those procedures could potentially expose or exacerbate a medical condition

airline personnel also had no reason to know of. See Hutchison, 910 F.3d at 1022.10

Put simply, Plaintiff fails to demonstrate Defendant Allegiant Air had the

requisite knowledge to give him the notice he believes was due. Without such

knowledge, Defendant Allegiant Air can have no duty to warn. Plaintiff’s claims for

negligence and NIED must therefore be dismissed. Furthermore, the Court does not

believe Plaintiff can amend his complaint to state facts giving rise to the duty he

believes was due; Counts XVIII and XIX are therefore dismissed with prejudice. See

10 Even if Defendant Allegiant Air had reason to know Plaintiff would be required to

submit to a pat down, Plaintiff does not indicate Defendant Allegiant Air had any

knowledge that a pat down would be dangerous or harmful to him. (See, e.g., doc. 12

(repeatedly referring to Plaintiff’s medical condition as hidden and private)).

R3 Composites Corp. v. G&S Sales Corp., 960 F.3d 935, 946 (7th Cir. 2020) (“District

courts may deny leave to amend . . . where there is a good reason to do so: futility,

undue delay, prejudice, or bad faith.” (internal quotation marks omitted)).

2. Plaintiff Cannot Establish IIED

Illinois Courts also look to the Restatement (2d) of Torts for guidance on IIED

claims. Schweihs v. Chase Home Fin., LLC, 2016 IL 120041, ¶¶ 49–51, 77 N.E.3d 50,

62–63. The tort consists of three elements:

First, the conduct involved must be truly extreme and outrageous.

Second, the actor must either intend that his conduct inflict severe

emotional distress or know that there is at least a high probability that

his conduct will cause severe emotional distress. Third, the conduct

must in fact cause severe emotional distress.

Id. ¶ 50; see also Restatement (2d) of Torts § 46(1) (1965). Liability for IIED extends

only in the most egregious of cases.

It is clear that the tort does not extend to mere insults, indignities,

threats, annoyances, petty oppressions, or other trivialities. It has not

been enough that the defendant has acted with an intent which is

tortious or even criminal, or that he has intended to inflict emotional

distress, or even that his conduct has been characterized by malice, or a

degree of aggravation which would entitle the plaintiff to punitive

damages for another tort. Liability has been found only where the

conduct has been so outrageous in character, and so extreme in degree,

as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community. The law

intervenes only where the distress inflicted is so severe that no

reasonable man could be expected to endure it. The intensity and the

duration of the distress are factors to be considered in determining the

severity.

Schweihs, 2016 IL 120041, ¶ 51 (internal citations omitted).

Plaintiff’s IIED claim is also predicated on Defendant Allegiant Air’s failure to

explain the TSA threat assessment procedures and warn him “that his reasonable

expectation of privacy could be violated through no fault of his own during the

security screening process[.]” (Doc. 12 at 22). However, the Court has determined

Defendant Allegiant Air had no responsibility give any such warning(s). Failure to

provide an explanation or warning about matters outside one’s knowledge does not

amount to the type of extreme or outrageous conduct necessary to predicate an IIED

claim. And Defendant Allegiant Air took no part in the actual conduct Plaintiff argues

caused his emotional distress: the TSA screening. There is simply no basis for an

IIED claim against Defendant Allegiant Air. Given Defendant Allegiant Air’s total

lack of participation in the conduct which allegedly caused Plaintiff emotional

distress, the Court finds any amendment would be futile. Count XX is therefore

dismissed with prejudice. See R3 Composites Corp., 960 F.3d at 946.

In sum, Defendant Allegiant Air’s Motion for Judgment on the Pleadings

Pursuant to Rule 12(c) and Motion to Dismiss for Failure to State a Claim Pursuant

to Rule 12(b)(6) is granted. Defendant Allegiant Air is entitled to judgment on the

pleadings with respect to Counts XV, XVI, and XVII, and Counts XVIII, XIX, XX are

dismissed with prejudice.

II. The Federal Defendants’ and Defendant Pekoske’s Motions to Dismiss

Plaintiff asserts a myriad of claims against the Federal Defendants. Plaintiff

claims the two TSA encounters were violations of the Fourth Amendment (committed

by both Defendant TSA and Defendant Pekoske, individually under Bivens v. Six

Unknown Agents, 403 U.S. 388 (1971)) (Counts I–IV, V, VII); the right to privacy

under the Illinois, Arizona, and United States Constitutions (Counts I–IV); the right

to due process under the Illinois, Arizona, and United States Constitutions

(committed by both Defendant TSA and Defendant Pekoske, individually under

Bivens) (Counts I–IV, VI, VIII); and the Rehabilitation Act (Count XXI). (Doc. 12 at

13–17, 24–26). Plaintiff further argues Defendant TSA’s failure to give notice of the

screening process and failure to warn of known dangers associated with it constitute

negligence and NIED (Counts I–IV). (Doc. 12 at 13–15). In addition to monetary

damages, Plaintiff seeks injunctive relief in the following forms: (1) a permanent

injunction preventing Defendant TSA from singling out Plaintiff and unlawfully

discriminating against him on the basis of his disability (Count XXI), (2) a permanent

injunction prohibiting the Federal Defendants from denying him the right to travel,

and (3) an injunction ordering the Federal Defendants and Defendant L3 to either

destroy any “screening data images” of him or turn any such images or data over to

him. (Doc. 12 at 26–27).

The Federal Defendants argue these claims must be dismissed for several

reasons:

First, in accordance with the doctrine of sovereign immunity, Plaintiff

cannot maintain state constitutional claims against the federal

government. Second, Plaintiff cannot recover monetary damages from

the Federal Defendants for his purported constitutional violations.

Third, insofar as Plaintiff’s claims against the Federal Defendants

challenge TSA’s Standard Operating Procedures for the security

screening of airline passengers, such claims must be brought in the

United States Courts of Appeals pursuant to 49 U.S.C. § 46110. Fourth,

Plaintiff has named the wrong defendant for the tort claims he asserts

and, thus, those claims should be dismissed. Finally, he lacks standing

for the declaratory and injunctive relief he demands.

(Doc. 33 at 2). Individually, Defendant Pekoske further argues Counts V–VIII must

be dismissed because Bivens relief is not available for Plaintiff’s claims. (Doc. 34). The

Court must first address matters of justiciability.

A. Subject Matter Jurisdiction

The Federal Defendants argue 49 U.S.C. § 46110 deprives the Court of subject

matter jurisdiction over several of Plaintiff’s claims. This is a facial challenge to the

Court’s subject matter jurisdiction, so the Court accepts all well-pleaded facts as true.

See Apex Digit., 572 F.3d at 443–44.

Section 46110(a) reads:

[A] person disclosing a substantial interest in an order issued by the

Secretary of Transportation (or the Administrator of the Transportation

Security Administration with respect to security duties and powers

designated to be carried out by the Administrator of the Transportation

Security Administration or the Administrator of the Federal Aviation

Administration with respect to aviation duties and powers designated

to be carried out by the Administrator of the Federal Aviation

Administration) in whole or in part under this part, part B, or subsection

(l) or (s) of section 114 may apply for review of the order by filing a

petition for review in the United States Court of Appeals for the District

of Columbia Circuit or in the court of appeals of the United States for

the circuit in which the person resides or has its principal place of

business.

Section 46110(c) further provides, in relevant part, that “the courts of appeals have

exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order.”

Merritt v. Shuttle, Inc., 245 F.3d 182, 187 (2d Cir. 2001) (Merritt II) (internal

quotation marks and emphasis omitted).

TSA’s screenings are conducted pursuant to, inter alia, its Standard Operating

Procedures (SOP), which set forth the threat assessment procedures central to this

lawsuit. The SOP has been widely and uniformly held to be a final order within the

meaning of § 46110(a), and challenges to the SOP therefore lie within the exclusive

jurisdiction of the courts of appeals. See Blitz v. Napolitano, 700 F.3d 733, 740 (4th

Cir. 2012); Corbett v. United States, 458 F. App’x 866, 869–71 (11th Cir. 2012); Roberts

v. Napolitano, 463 F. App’x 4, 4–5 (D.C. Cir. 2012); Redfern v. Napolitano, 727 F.3d

77, 83 n.3 (1st Cir. 2013); Scruggs v. McAleenan, No. 18-CV-2109, 2019 WL 4034622,

at *1 (N.D. Ill. Aug. 27, 2019).

Furthermore, any claims “inescapably intertwined” with review of such an

order are subject to the jurisdictional limitation in § 46110. Merritt II, 245 F.3d at

187; see also Merritt v. Shuttle, Inc., 187 F.3d 263, 271 (2d Cir. 1999) (Merritt I). “A

claim is inescapably intertwined in this manner if it alleges that the plaintiff was

injured by such an order and that the court of appeals has authority to hear the claim

on direct review of the agency order.” Merritt II, 245 F.3d at 187 (citing City of Tacoma

v. Taxpayers of Tacoma, 357 U.S. 320, 336 (1958)). “[T]he test for determining

whether [§ 46110] precludes a district court from hearing a particular claim is . . .

whether the claim “could and should have been” presented to and decided by a court

of appeals. Id. at 188 (quoting City of Tacoma, 357 U.S. at 339). Thus, a district court

must consider whether resolution of the claim would require it to affirm, amend,

modify, or set aside any part of the order; if so, the claim lies in the exclusive

jurisdiction of the courts of appeals. See id.

In keeping with this authority, courts have routinely held constitutional

challenges to TSA screening procedures lie within the exclusive jurisdiction of the

courts of appeals under § 46110. Corbett, 458 F. App’x at 871 (“[T]o determine

whether the security screening procedures set forth in the SOP comply with the

Fourth Amendment, a court must necessarily review the procedures and merits

surrounding the . . . order.” (internal quotation marks omitted)); see also Gilmore v.

Gonzales, 435 F.3d 1125, 1132–33 (9th Cir. 2006) (holding First and Fourth

Amendment challenges to TSA’s pre-SOP standard requirement to provide

identification were precluded by § 46110); Roberts, 463 F. App’x at 5 (holding “claims

for injunctive and declaratory relief directly seek review of orders issued by TSA” and

therefore fall under the purview of § 46110).

The First Circuit’s decision in Ruskai v. Pistole, 775 F.3d 61 (1st Cir. 2014), is

particularly illustrative. There, the plaintiff—who could not pass through some TSA

security checkpoints without submitting to pat-down searches due to her metallic

joint replacement—argued TSA screening procedures, as applied to her, violated both

the Fourth Amendment and the Rehabilitation Act; she also challenged TSA’s refusal

to allow her an exception to the pat-down requirement. Id. at 63–65. The First Circuit

concluded those claims were within its exclusive subject matter jurisdiction under §

46110. Id. at 65. Plaintiff’s claims, along with their factual bases, are strikingly

similar to those in Ruskai, yet he fails to explain how they are not direct challenges

to the SOP or inescapably intertwined with review thereof. Rather, he generally

states his claims arise under common law negligence and argues the merits of his

negligence claims. (Doc. 38 at 18–20). As most of his claims against the Federal

Defendants are premised on constitutional and statutory law (see docs. 12 at 13–17,

24–26; 38 at 7–18), his arguments are misplaced.

Applying the jurisdictional filter in § 46110 to the case at hand, it is clear the

Court lacks jurisdiction to hear Plaintiff’s constitutional11 and Rehabilitation Act

claims against Defendant TSA in Counts I–IV and XXI. See Ruskai, 775 F.3d at 65;

Corbett, 458 F. App’x at 871. The same reasoning dispenses of Plaintiff’s claims

against Defendant Pekoske in Counts V–VIII, which allege he is individually liable

for the same conduct. See Merritt I, 187 F.3d at 272 (finding Bivens claims for alleged

constitutional violations arising from a Federal Aviation Administration (FAA)

adjudication were inescapably intertwined with review of that adjudication).12

Additionally, Plaintiff’s requests for (1) a permanent injunction preventing

Defendant TSA from unlawfully discriminating against him on the basis of his

disability (Count XXI) and (2) a permanent injunction prohibiting the Federal

Defendants from denying him the right to travel (doc. 12 at 26)13 are, at their core,

requests for an exception to the SOP, as they would essentially invalidate certain

portions of the SOP as to him, see Roberts, 463 F. App’x at 5; Ruskai, 775 F.3d at 65.

Therefore, they too must be brought to the court of appeals in the first instance.

11 Specifically, the Court is referring to the Fourth Amendment claims (Counts I–IV,

V, VII); the claims based on right to privacy under the Illinois, Arizona, and United

States Constitutions (Counts I–IV); and the claims based on the right to due process

under the Illinois, Arizona, and United States Constitutions (Counts I–IV, VI, VIII).

12 Consequently, Defendant Pekoske’s individual Motion to Dismiss for Failure to

State a Claim (doc. 34) is moot.

13 The request for an injunction ordering the Federal Defendants and Defendant L3

to either destroy any “screening data images” of him or turn any such images or data

over to him is not a stand-alone claim but rather is sought as a remedy for the alleged

constitutional violations. (See doc. 12 at 26–27). Since this injunctive relief is a

remedy for claims outside the Court’s subject matter jurisdiction, the relief must be

denied here, to the extent it applies to the Federal Defendants.

What remains are Plaintiff’s claims for negligence and NIED under the Federal

Tort Claims Act (FTCA). On this score, the Merritt litigation is instructive. In Merritt,

a commercial airline pilot was discharged and had his license suspended following a

bad-weather flight that nearly resulted in a crash. Merritt II, 245 F.3d at 184–85. The

pilot thereafter raised a litany of claims against multiple defendants, including

claims that government officials were individually liable under Bivens for depriving

him of his rights to due process under the Fifth Amendment (at issue in Merritt I)

and that the United States was liable under the FTCA for negligently failing to warn

him of the approaching bad weather (at issue in Merritt II). Merritt II, 245 F.3d at

185. The Court ultimately found the Bivens claims were precluded from the district

court’s jurisdiction by § 46110 because they directly challenged an adjudication

resulting in a final order by the FAA (the order suspending his pilot license), while

the FTCA claim was not precluded by § 46110 because it challenged conduct

unrelated to that adjudication and order. Id. at 189–90. The court went on to suggest,

as a general matter, FTCA claims are not precluded by § 46110. Id. at 190–91 (citing

Beins v. United States, 695 F.2d 591, 597–98 (D.C. Cir. 1982)).

Similar to the Merritt litigation, the Court finds Plaintiff’s FTCA claims are

not precluded from its jurisdiction by § 46110, while his Bivens and constitutional

claims are. Plaintiff’s FTCA claims do not allege he was injured or aggrieved by any

particular TSA order or otherwise attack any TSA official’s conduct during the August

2018 screenings; in fact, he explicitly states his FTCA claims do not attack the design,

implementation of, or adherence to the SOP. (Doc. 38 at 18–20). Rather, he claims he

was injured by Defendant TSA’s failure to warn him about the screening procedures

and what they entail before he presented to TSA for screening. (See docs. 12 at 13–

15; 38 at 18–20). Furthermore, he does not allege the SOP contains any notice

requirement which was not followed or otherwise advocate for an amendment to the

SOP adding such a requirement; instead, he suggests he simply would not have flown

had he known he would be subject to a pat-down search while symptomatic. (See doc.

38 at 11 (“[I]f he had been given fair notice of the process, he never would have booked

a ticket.”). For these reasons, the Court concludes Plaintiff’s FTCA claims do not

challenge the SOP or any other TSA order and therefore fall outside the purview of §

46110. See Merritt II, 245 F.3d at 189–91.

B. Plaintiff’s FTCA Claims Must be Dismissed

The FTCA permits litigants to raise certain tort claims against the United

States “for injury or loss of property, or personal injury or death caused by the

negligent or wrongful act or omission of any employee of the Government while acting

within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). The relief

permitted by the FTCA is an exclusive remedy for damages caused by federal

employees acting in the course of their employment. See 28 U.S.C. § 2679. In FTCA

cases, “the United States is the only proper defendant.” Smith v. United States, 678

F. App’x 403, 406 (7th Cir. 2017).

Plaintiff’s claims for negligence and NIED against Defendant TSA were clearly

brought under the FTCA. (See doc. 12 at 3 (invoking the FTCA jurisdictional

provision, § 1346(b)(1))). As Defendant TSA is not the proper party, the FTCA claims

against it must be dismissed. See Smith, 678 F. App’x at 406 (affirming the dismissal

of FTCA claims brought against a government agency as opposed to the United

States).

Plaintiff argues the United States should simply be substituted as the correct

party, citing the principle that pro se pleadings must be liberally construed coupled

with the certification process outlined in § 2679(d). (Doc. 38 at 4–7). He is incorrect.

Though pro se complaints are indeed liberally construed, liberal construction does not

include sua sponte or unilateral substitution of parties against whom Plaintiff has

not elected to sue; Plaintiff is master of his complaint, see Caterpillar Inc. v. Williams,

482 U.S. 386, 398–99 (1987). Further, he misunderstands the certification provision,

§ 2679(d), which merely allows the Attorney General to recategorize state-law tort

claims brought against federal employees as FTCA claims where appropriate.

Matthews v. United States, 805 F. Supp. 712, 715 (E.D. Wis. 1992), aff’d, 28 F.3d 1216

(7th Cir. 1994) (“[T]he provision simply means that when an action is brought against

a federal employee pursuant to some other grant of jurisdiction—say, diversity

jurisdiction—it may be converted into an FTCA case upon the Attorney General’s

certification.”). Plaintiff’s First Amended Complaint made clear he was suing for

negligence and NIED under the FTCA, so certification under § 2679(d) was

unnecessary.

Nevertheless, even if the Court were to order the United States be substituted

for Defendant TSA, Plaintiff’s claims would fail; the Court can conceive of no possible

scenario in which United States officials had or breached the duty Plaintiff argues

was owed to him. As stated, a plaintiff alleging negligence must ultimately prove

“existence of a duty, the defendant’s breach of that duty, and that the breach

proximately caused the plaintiff’s resulting injuries.” Roh, 881 F.3d at 973. And, a

direct-victim plaintiff alleging NIED in Illinois must ultimately prove the elements

of negligence as well as “emotional distress and . . . a contemporaneous physical

injury or impact.” Schweihs, 2016 IL 120041, ¶ 31 (quoting Corgan, 143 Ill. 2d at 303).

A duty to warn arises only “where there is unequal knowledge, actual or constructive

[of a dangerous condition], and the defendant[,] possessed of such knowledge, knows

or should know that harm might or could occur if no warning is given.” Hutchison,

910 F.3d at 1022 (internal quotation marks omitted).

To the extent Plaintiff argues he was owed a warning prior to his arrival for

TSA screening, his argument fails because he repeatedly maintains his medical

condition was hidden and private. Absent knowledge the screening process would be

dangerous for Plaintiff, no duty to warn can attach.14 And by the time TSA officials

became aware of some extent of Plaintiff’s medical condition—due to his warning that

he was suffering a serious medical emergency and “being touched at his right groin

would result in extreme physical pain and could endanger his life” (e.g., doc. 12 at 7,

10)—TSA officials had warned him that a pat-down search was required (doc. 12 at

5–7, 8–11), precluding a finding of breach. The Court is sympathetic to Plaintiff’s

14 Further, the United States is under no obligation to warn of a process required by

law, as previously stated. And the notion that Plaintiff was owed a duty to disclose

the details of TSA screening procedures is ludicrous. Plaintiff himself admits the TSA

SOP is sensitive security information (see doc. 36 at 20); widespread public disclosure

of this type of sensitive security information—which would undoubtedly result if

Plaintiff’s argument were to prevail—could compromise national security interests.

plight and psychological struggles, but his allegations simply do not establish any

viable claim the United States breached any duty owed to him.

In sum, the Federal Defendant’s Motion to Dismiss (doc. 33) is granted, and

Defendant Pekoske’s Motion to Dismiss for Failure to State a Claim (doc. 34) is denied

as moot. Counts I, II, III, and IV are dismissed in part for want of subject matter

jurisdiction and in part for failure to state a claim, and Counts V, VI, VII, VIII, and

XXI are dismissed for want of subject matter jurisdiction. Because the Court finds

substituting the United States for Defendant TSA would be futile, the Court will not

allow Plaintiff leave to amend Counts I–IV. R3 Composites Corp., 960 F.3d at 946.

III. Defendant L3’s Motion to Dismiss

Plaintiff’s claims against Defendant L3, contained in Counts IX–XIV, mirror

those asserted against Defendant Allegiant Air. He asserts a set of claims—

negligence, NIED, and IIED—for both TSA encounters.15 (Doc. 12 at 17–20).

Defendant L3 argues the claims must be dismissed for several reasons. First,

Defendant L3 argues the claims based on the Illinois encounter (Counts XII–XIV) are

barred by res judicata and the claims based on the Arizona encounter (Counts IX–XI)

are therefore time-barred. (Doc. 37 at 1–2). Second, in the alternative, Defendant L3

argues the claims must be dismissed pursuant to the Support Anti-Terrorism by

15 As was the case with the claims asserted against Defendant Allegiant Air, the

Court finds Plaintiff’s claims against Defendant L3 sound in tort, despite invoking

various constitutional principles. Again, “[m]ost rights secured by the Constitution

are protected only against infringement by governments, so . . . the conduct allegedly

causing the deprivation of a federal right [must] be fairly attributable to the State.”

Listecki, 780 F.3d at 741 (internal quotation marks omitted). Plaintiff fails to explain

how the actions of Defendant L3, a private corporation, may be fairly attributable to

a state government or to the federal government.

Fostering Effective Technologies Act of 2002, 6 U.S.C. § 441 et seq. (SAFETY Act).

(Doc. 37 at 2). Finally, and also in the alternative, Defendant L3 argues Plaintiff has

failed to state a claim. (Doc. 37 at 2).

A. Res Judicata and Statute of Limitations

Invoking the Seventh Circuit’s decision in Arrigo v. Link, 836 F.3d 787, 799

(7th Cir. 2016), Defendant L3 argues a decision by the Arizona District Court in a

prior suit between it and Plaintiff precludes his claims based on the Illinois

encounter. (Doc. 37 at 8–11). Defendant L3 further argues because those claims are

res judicata, they are a legal nullity and cannot serve to extend the statute of

limitations for Plaintiff’s claims based on the Arizona encounter, which were added

in the First Amended Complaint after the two-year statute of limitations had run.

(Doc. 37 at 11–13).

It is worth noting both res judicata and statutes of limitations provide

affirmative defenses and may not be the basis for dismissal under Rule 12 unless “it

is clear from the face of the complaint, and matters of which the court may take

judicial notice, that the plaintiff's claims are barred as a matter of law,” Parungao v.

Cmty. Health Sys., Inc., 858 F.3d 452, 457 (7th Cir. 2017) (internal quotation marks

omitted). The Court is permitted to take judicial notice of the docket in Muir v.

L3Harris Tech., Inc., No. 2:19-cv-05887 (D. Ariz.), Plaintiff’s prior suit against

Defendant L3. See Daniel v. Cook Cty., 833 F.3d 728, 742 (7th Cir. 2016).

In the Arizona lawsuit, Plaintiff filed various claims against Defendant L3

based on the Arizona encounter. Muir, No. 2:19-cv-05887, doc. 1-3. In response to

Defendant L3’s motion to dismiss his First Amended Complaint, Plaintiff attempted

to file a Second Amended Complaint, which added Defendants TSA and Pekoske as

well as claims for, inter alia, negligence and NIED based on the Illinois encounter.

See id., doc. 23 at 28–32. Despite the Ninth Circuit’s policy of “extreme liberality”

pertaining to amendment, the Arizona District Court denied Plaintiff leave to file his

Second Amended Complaint:

In violation of Local Rule of Civil Procedure 15.1, Plaintiff has not

“indicate[d] in what respect the [second amended complaint] differs from

the pleading which it amends[.]” A comparison of the two pleadings,

however, shows that the second amended complaint adds two new

defendants – the TSA and its Administrator – and asserts claims that

clearly are without merit. See Doc. 23 at 23-43 (alleging violations of

the Eighth Amendment and Illinois criminal statutes). Plaintiff has

provided no basis for adding defendants and expanding the scope and

nature of his claims. Moreover, Defendant L3Harris has now twice

moved to dismiss Plaintiff’s claims. Docs. 14, 22. Requiring Defendant

to file a third motion to dismiss would be unfair and unduly prejudicial.

The Court will deny Plaintiff leave to amend his first amended

complaint. See Chodosv. W. Publ’g Co., 292 F.3d 992, 1003 (9th Cir.

2002) (explaining that a district court’s discretion to deny leave to

amend is “particularly broad” where the plaintiff previously amended

the complaint).

Id., doc. 24 at 2–3. Plaintiff thereafter filed the instant lawsuit and voluntarily

dismissed the Arizona lawsuit under Federal Rule of Civil Procedure 41(a)(1)(A)(i),

id., doc. 25.

The fact Plaintiff voluntarily dismissed the Arizona lawsuit puts a wrench in

Defendant L3’s arguments. “A suit that is voluntarily dismissed under Rule 41(a)

generally is treated as if it had never been filed.” Nelson v. Napolitano, 657 F.3d 586,

587 (7th Cir. 2011). Defendant L3 has not identified any case in which preclusion

flowed from a case which was voluntarily dismissed, and the Court has found none.

Even in Arrigo, the Seventh Circuit recognized a final judgment on the merits must

support a res judicata finding. Arrigo, 836 F.3d 799–800; see also Sklyarsky v. Means-

Knaus Partners, L.P., 777 F.3d 892, 896 (7th Cir. 2015) (finding error where a trial

court found preclusion while the first suit “was still pending and thus the interim

ruling denying leave to [amend] was not a final decision having preclusive effect”).

For these reasons, the Court is not at this time willing to dismiss on res judicata

grounds. That said, the Court recognizes the policies espoused in Arrigo could apply

to situations such as this16 and therefore declines to foreclose the matter at this point.

B. SAFETY Act

Defendant L3 next argues Plaintiff’s claims must be dismissed under the

government contractor defense provided by the SAFETY Act, 6 U.S.C. § 442(d)(1).

(Doc. 37 at 13–15). In support of this defense, Defendant L3 attaches documents to

its Motion, including a declaration from its former Vice President of Contracts (doc.

44) and a Safety Act Certification from the Department of Homeland Security (doc

37-5).

“Generally, a district court cannot consider evidence outside the pleadings to

decide a motion to dismiss without converting it into a motion for summary

judgment.” Jackson v. Curry, 888 F.3d 259, 263 (7th Cir. 2018). The documentation

on which Defendant L3 relies for its SAFETY Act defense do not appear to fall within

the narrow exceptions to this general rule. See Phillips v. Prudential Ins. Co. of Am.,

714 F.3d 1017, 1019–20 (7th Cir. 2013) (noting consideration of a motion to dismiss

16 The holding in Arrigo “promotes predictability in the judicial process, preserves the

limited resources of the judiciary, and protects litigants from the expense and

disruption of being haled into court repeatedly.” Arrigo, 836 F.3d at 799 (internal

quotation marks omitted).

requires consideration of “the complaint itself, . . . documents attached to the

complaint, documents that are critical to the complaint and referred to in it, and

information that is subject to proper judicial notice”). The Court therefore declines to

resolve the SAFETY Act defense at this stage of the proceedings.

C. Plaintiff Failed to State a Claim Against Defendant L3

Plaintiff alleges Defendant L3 committed negligence, NIED, and IIED.

Defendant L3 argues these claims fail as a matter of law. (Doc. 37 at 15–21).

1. Plaintiff Cannot Establish Negligence or NIED

As stated, a plaintiff alleging negligence in Illinois17 must ultimately prove

“existence of a duty, the defendant’s breach of that duty, and that the breach

proximately caused the plaintiff’s resulting injuries.” Roh, 881 F.3d at 973. And, a

direct-victim plaintiff alleging NIED in Illinois must ultimately prove the elements

of negligence as well as “emotional distress and . . . a contemporaneous physical

injury or impact.” Schweihs, 2016 IL 120041, ¶ 31 (quoting Corgan, 143 Ill. 2d at

303).18

17 The Court again recognizes some events giving rise to Plaintiff’s claims occurred in

Arizona, thus raising a possible choice of law issue. However, as neither party

identifies a relevant conflict between Arizona and Illinois law pertaining to

negligence claims, the Court will apply Illinois law. J.S.T. Corp., 965 F.3d at 577 n.1

(“[W]hen neither party raises a conflict of law issue in a [supplemental jurisdiction

or] diversity case, a federal court should apply the law of the state in which it sits.”).

18 According to Defendant L3, a claim for NIED in Arizona “requires that the plaintiff

witness an injury to a closely related person, suffer mental anguish that manifests

itself as a physical injury, and be within the zone of danger so as to be subject to an

unreasonable risk of bodily harm created by the defendant,” Guerra v. State, 237 Ariz.

183, 186, 348 P.3d 423, 426 (2015). (Doc. 37 at 19). However, these elements clearly

apply to indirect-victim claims, and Plaintiff’s claims are direct-victim claims. As

neither party has identified a conflict between Illinois and Arizona law pertaining to

As Defendant L3 notes, the Amended Complaint is devoid of any allegations

establishing a duty. Plaintiff’s Response does little to explain his theory. Therein, he

discusses a hodgepodge of matters, asserting at various points a duty arose because

he had a special relationship with Defendant L3 and there was a common enterprise

among Defendants L3, TSA, and Allegiant Air. (Doc. 42 at 15–17). Plaintiff also

asserts “profit motive[s]” play a factor in the duty analysis. (Doc. 42 at 17–18).

Plaintiff argues Defendant L3 was required “to reveal all important information

regarding the advanced technology components of the threat assessment process so

that [he] could have the opportunity to exercise his right to avoid them by choosing

not to fly.” (Doc. 42 at 16). All the while, Plaintiff cites no authority supporting his

position.

To start, Plaintiff alleges no facts indicating he had a “special relationship,” in

the context of duty formation, with Defendant L3. See Iseberg, 227 Ill. 2d at 88. And,

as previously stated, a duty to warn arises only “where there is unequal knowledge,

actual or constructive [of a dangerous condition], and the defendant[,] possessed of

such knowledge, knows or should know that harm might or could occur if no warning

is given.” Hutchison, 910 F.3d at 1022 (internal quotation marks omitted). Plaintiff

alleges no facts from which the Court can infer Defendant L3 would or could have

had any knowledge of Plaintiff’s medical condition or that the equipment it developed

would trigger the events which allegedly caused Plaintiff’s damages.

direct-victim claims for NIED, the Court will apply Illinois law, J.S.T. Corp., 965 F.3d

at 577 n.1.

In sum, Plaintiff has failed to identify any legal theory which would impose a

duty on Defendant L3 in this context. His claims for negligence and NEID must

therefore be dismissed. Because the Court does not believe Plaintiff can amend his

complaint to state facts sufficient to state claims for negligence and NIED, Counts

IX, X, XII, and XIII are dismissed with prejudice. See R3 Composites Corp., 960 F.3d

at 946.

2. Plaintiff Cannot Establish IIED

As stated, the tort of IIED consists of three elements:

First, the conduct involved must be truly extreme and outrageous.

Second, the actor must either intend that his conduct inflict severe

emotional distress or know that there is at least a high probability that

his conduct will cause severe emotional distress. Third, the conduct

must in fact cause severe emotional distress.

Schweihs, 2016 IL 120041, ¶ 50; see also Restatement (2d) of Torts § 46(1) (1965).

Liability extends only in the most egregious of cases. See Schweihs, 2016 IL 120041,

¶ 51.

The basis for Plaintiff’s IIED claim against Defendant L3 is unclear. The

Amended Complaint vaguely suggests various violations of state and federal

constitutional rights, such as the right to privacy, constitute IIED (doc. 12 at 18, 20);

the Response to Defendant L3’s Motion to Dismiss fails to address IIED at all (see

doc. 42 at 15–20). This is wholly insufficient to survive scrutiny under Rule 12(b)(6).

Further, given Plaintiff had no direct interaction with Defendant L3, the Court finds

amendment would be futile. Counts XI and XIV are therefore dismissed with

prejudice. See R3 Composites Corp., 960 F.3d at 946.

In sum, Defendant L3’s Motion to Dismiss is granted; Counts IX, X, XI, XII,

XIII, and XIV are dismissed with prejudice.

CONCLUSION

IT IS THEREFORE ORDERED that:

1. Defendant Allegiant Air’s Motion for Judgment on the Pleadings Pursuant to

Rule 12(c) and Motion to Dismiss for Failure to State a Claim Pursuant to Rule

12(b)(6) (doc. 30) is GRANTED; Defendant Allegiant Air is granted judgment

on the pleadings with respect to Counts XV, XVI, and XVII, and Counts XVIII,

XIX, and XX are DISMISSED WITH PREJUDICE.

2. The Federal Defendant’s Motion to Dismiss (doc. 33) is GRANTED; Counts I,

II, III, and IV are DISMISSED WITH PREJUDICE in part for want of subject

matter jurisdiction and in part for failure to state a claim, and Counts V, VI,

VII, VIII, and XXI are DISMISSED for want of subject matter jurisdiction.

3. Defendant Pekoske’s Motion to Dismiss for Failure to State a Claim (doc. 34)

is DENIED AS MOOT.

4. Defendant L3’s Motion to Dismiss (doc. 37) is GRANTED; Counts IX, X, XI,

XII, XIII, and XIV are DISMISSED WITH PREJUDICE.

This matter is terminated, and judgment shall enter in favor of all defendants.

SO ORDERED.

Entered this 22nd day of January 2021.

s/ Joe B. McDade

JOE BILLY McDADE

United States Senior District Judge