# Muir v. United States Transportation Security Administration

> District Court, C.D. Illinois · January 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10136173

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** January 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10136173. Public record. Not legal advice.