Robinson v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

TONY TERRELL ROBINSON, )

18099-041, )

)

Plaintiff, )

)

vs. ) Case No. 19-cv-00395-JPG

)

UNITED STATES OF AMERICA, )

)

Defendants. )

MEMORANDUM AND ORDER

GILBERT, District Judge:

This matter comes before the Court on a Motion to Dismiss filed by Defendant United

States of America. (Doc. 18). Defendant seeks dismissal of the federal tort claim against it

pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”). (Id.). For the reasons set

forth below, the Motion to Dismiss shall be GRANTED and this case DISMISSED.

PROCEDURAL HISTORY

This is one of two cases Plaintiff Tony Terrell Robinson brought against the United States

under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346, for an alleged violation of Illinois

tort law prohibiting retaliatory discharge. The first suit was opened on February 2, 2018.1

Robinson v. Morris, et al., No. 18-cv-164-JPG (S.D. Ill.) (Doc. 1) (“Case 18-164”). The instant

case was filed on April 10, 2019. (Doc. 1).

Both cases involve the same parties, the same events, and the same FTCA claim.2 In both,

Plaintiff asserts he was unlawfully terminated from his position as a library orderly at the Federal

1 Case 18-164 was severed from Robinson v. Morris, No. 17-cv-1381-JPG (S.D. Ill. filed Dec. 22 2017),

on February 1, 2018.

2 Case 18-164 also involves claims brought pursuant to Bivens v. Six Unknown Named Agents, 403 U.S.

388 (1971), which are not relevant to the instant action or pending motion to dismiss.

Correctional Institution in Greenville, Illinois (“FCI-Greenville”) in April 2017, after he

complained about a change in the library’s policy. (Doc. 1, p. 4). The new library policy required

inmates to skip their evening meal in order to visit the law library after 4:00 p.m. (Id.). When

Plaintiff expressed his opinion that the prison had enough staff to cover evening meals and evening

library access, he was deemed a security threat and terminated from his position. (Id.). Plaintiff

was threatened with a transfer when he later questioned the basis of his termination. (Id.).

Following screening under 28 U.S.C. § 1915A, Plaintiff was allowed to proceed with a single

FTCA claim against the United States under Illinois retaliatory discharge law for terminating

Plaintiff from his library orderly position at FCI-Greenville in April 2017. (Doc. 11, p. 2; Doc.

36, pp. 3-5, 7-8, Case 18-164). The United States sought dismissal of both cases on different

grounds. (Doc. 18, filed Aug. 27, 2019; Doc. 47, filed Feb. 15, 2019, Case 18-164).

In a Motion to Dismiss or, in the Alternative, a Motion for Summary Judgment filed in

Case 18-164, the Government argued that Plaintiff failed to exhaust his remedies before filing suit.

(Doc. 47, Case 18-164). This Court agreed and dismissed Case 18-164 on December 23, 2019.

(Doc. 71, Case 18-164). The dismissal was without prejudice. (Id.).

In the Motion to Dismiss the pending action, the Government seeks dismissal of the FTCA

claim under Rule 12(b)(6). (Doc. 18). The Government argues that Plaintiff is not an employee

who can bring a claim for retaliatory discharge under Illinois tort law and, even if he is, Plaintiff’s

FTCA claim is pre-empted by the Civil Service Reform Act (“CSRA”).3 (Doc. 18). Plaintiff

concedes that he was not acting as an employee of the Federal Government when serving as a

library orderly and is therefore not covered by the CSRA. (Doc. 19).

3 Plaintiff raised the same argument in Case 18-164, but the Court dismissed that case on exhaustion

grounds. (See Doc. 71).

LEGAL STANDARD

The purpose of a motion to dismiss filed pursuant to Rule 12(b)(6) is to decide the adequacy

of the Complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In order to

survive a Rule 12(b)(6) motion, the Complaint must allege enough factual information to “state a

claim to relief that is plausible on its face” and “raise a right to relief above the speculative level.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim is plausible 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 need

not plead detailed factual allegations, but he or she must provide “more than labels and

conclusions, and a formulaic recitation of the elements.” Twombly, 550 U.S. at 570. When

considering a Rule 12(b)(6) motion for dismissal, the Court must accept well-pleaded facts as true

and draw all possible inferences in favor of the plaintiff. McReynolds v. Merrill Lynch & Co., Inc.,

694 F.3d 873, 879 (7th Cir. 2012).

ANALYSIS

The Federal Tort Claims Act (“FTCA”) allows “federal inmates [to] bring suit for injuries

they sustain in custody as a consequence of the negligence of prison officials.” Buechel v. United

States, 746 F.3d 753, 758 (7th Cir. 2014); 28 U.S.C. § 1346(b)(1). Courts considering an FTCA

claim look to the tort law of the state where the tortious conduct occurred. Augutis v. United States,

732 F.3d 749, 752 (7th Cir. 2013). The conduct giving rise to this case occurred at FCI-Greenville

in Illinois. The Court therefore looks to Illinois law when analyzing his claim.

In order to state a claim for retaliatory discharge under Illinois law, an “employee must

prove: (1) the employer discharged the employee, (2) the discharge was in retaliation for the

employee’s activities (causation), and (3) the discharge violates a clear mandate of public policy.”

Sweeney v. City of Decatur, 79 N.E.3d 184, 190 (Ill. App. Ct. 2017) (quoting Michael v. Precision

Alliance Group, LLC, 21 N.E.3d 1183, 1188 (Ill. 2014)) (internal quotations omitted).

Plaintiff’s FTCA claim, arising from his termination as a library orderly, hinges on his

status as an employee. Illinois law does not recognize retaliatory discharge claims brought by non-

employees. See, e.g., Lewis v. Marmon Group, LLC, 2014 WL 4357603, *4 (N.D. Ill. 2014)

(“Illinois law does not recognize a claim for retaliatory discharge by independent contractors.”);

New Horizons Electronics Marketing, Inc. v. Clarion Corp., 561 N.E.2d 283, 285 (Ill. App. Ct.

1990) (upholding dismissal of action for retaliatory discharge brought by a non-employee of the

defendant). While serving as a library orderly, Plaintiff was not acting as an employee of the

Federal Bureau of Prisons. Plaintiff concedes this point and points to no law suggesting otherwise.

(Doc. 24).

The BOP has broad discretion when regulating and administering prison employment, see

Inmate Work and Performance Pay Program, 28 C.F.R. § 545.20, et seq. Courts have frequently

held that prison inmates do not qualify as “employees” who are subject to typical employment

laws. See, e.g., Vanskike v. Peters, III, 974 F.2d 806, 808-10 (7th Cir. 1992) (Fair Labor Standards

Act); Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991) (Title VII and Age Discrimination in

Employment Act); See also DeWeese v. State of Illinois Dept. of Public Safety, 28 Ill. Ct. Cl. 230

(Ill. Ct. Cl. 1973) (Workmen’s Compensation Act and Health and Safety Act); Moore v. State of

Illinois, 21 Ill. Ct. Cl. 282 (Ill. Ct. Cl. 1951) (Health and Safety Act). Plaintiff’s position as an

inmate library orderly does not qualify him as an employee within the meaning of Illinois tort law.

The FTCA claim (Count 1), and this action, shall be dismissed with prejudice.4

4 To the extent Plaintiff disagrees, this Order does not preclude him from pursuing relief under the Civil

Service Reform Act by filing a claim with the Merit Systems Protection Board and an appeal with the

Federal Circuit. See Ayrault v. Pena, 60 F.3d 346 (7th Cir. 1995). However, this Court lacks jurisdiction

over such claims and therefore takes no position regarding the merits of the claim.

DISPOSITION

IT IS ORDERED that, for the reasons, set forth above, Defendant’s Motion to Dismiss

(Doc. 18) is GRANTED pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

COUNT 1 is DISMISSED with prejudice for failure to state a claim upon which relief may be

granted. Plaintiff’s Motion to Consolidate Related Case (Doc. 15) and Defendant’s Motion to Stay

Answer Deadline or, in the Alternative, Motion for Extension of Time (Doc. 17) are DISMISSED

as MOOT. This action is DISMISSED with prejudice, and judgment will be entered accordingly.

DATED: March 20, 2020

s/J. Phil Gilbert

J. PHIL GILBERT

United States District Judge