Waugh v. Schreiber

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

TOMMY LEE WAUGH, #47088-074, )

)

Plaintiff, )

vs. ) Case No. 21-cv-813-JPG

)

M. SCHREIBER, J. LECLAIR, )

M. WALLACE, DAN SPROUL, )

D. CHRISTENSEN, C. DAVIS, )

SARAH BYRAM, KENT RUSHING, )

N. SIMPKINS, KATHY HILL, )

BARBARA VON BLANCKENSEE, )

AMBER NELSON, B. PATTIOS, )

M. STALLART, RICHARD M. WINTER, )

MARY NOLAND, )

KATHERINE SIEREVELD, )

TRACY KNUTSON, and )

USA, )

)

Defendants. )

MEMORANDUM AND ORDER

GILBERT, District Judge:

Plaintiff Tommy Lee Waugh is an inmate in the custody of the Federal Bureau of Prisons

(“BOP”), currently incarcerated at the United States Penitentiary in Terre Haute, Indiana. (Doc.

9). Previously, Plaintiff was confined at the United States Penitentiary in Marion, Illinois

(“Marion”) in the Communications Management Unit (“CMU”). While at Marion, Plaintiff filed

a Complaint in the Circuit Court for the First Judicial Circuit, Williamson County, in the State of

Illinois.1 (Doc. 1-1, pp. 9-16). Defendants removed the case to this Court pursuant to the Federal

Employees Liability Reform and Tort Compensation Act of 1988, a federal statute commonly

known as the “Westfall Act,” 28 U.S.C. § 2679, and alternatively under the federal officer removal

1 Plaintiff’s Williamson County case was docketed as No. 21-L-54, filed there May 3, 2021. (Doc. 1-1, p.

2).

statute, 28 U.S.C. § 1442(a)(1). (Doc. 1).

The Complaint alleges Defendants denied Plaintiff access to the BOP’s Administrative

Remedy Program for resolution of complaints related to his incarceration, and claims violations of

Illinois law, the First Amendment of the United States Constitution, and the Administrative

Procedures Act (“APA”), 5 U.S.C. § 706(2)(A). (Doc. 1-1, pp. 13-16). Plaintiff seeks damages and

injunctive relief. (Doc. 1-1, p. 16).

On March 24, 2022, the Court found removal was proper, and granted in part Defendants’

motion to substitute the United States as Defendant. (Doc. 10, pp. 2-4). The United States is now

the sole Defendant for Plaintiff’s claims based on Illinois law (which are proceeding under the

Federal Tort Claims Act) and on the APA (Counts 1, 3, 4, and 5). Id. The individual Defendants

remain in the action for Count 2 only, which raises claims pursuant to Bivens v. Six Unknown

Named Agents, 403 U.S. 388 (1971).

This case is now before the Court for preliminary review of the Complaint under 28 U.S.C.

§ 1915A, which requires the Court to screen prisoner Complaints to filter out nonmeritorious

claims. 28 U.S.C. § 1915A(a). Any portion of the Complaint that is legally frivolous, malicious,

fails to state a claim for relief, or requests money damages from an immune defendant must be

dismissed. 28 U.S.C. § 1915A(b).

THE COMPLAINT

Plaintiff makes the following allegations in his Complaint (Doc. 1): When he was placed

in the CMU at Marion in October 2019, Plaintiff was able to access the prison’s Administrative

Remedy Program by obtaining BP-8 and other forms to file institutional grievances regarding his

conditions of confinement. (Doc. 1-1, pp. 8-10). Defendant Hill and Gary Burgess (who is not a

Defendant) functioned as correctional counselors for the CMU, provided required forms, and

handled inmate complaints at the initial stages. Burgess retired in late 2020 and was replaced by

Defendant Kent Rushing; Plaintiff was able to obtain BP-8 and other forms from him. (Doc. 1-1,

p. 10).

However, as the number of complaints filed by Plaintiff and other CMU inmates increased,

Defendants Blanckensee, Nelson, Stallard, Pattios, Winter, and Noland told Defendants Siereveld,

Sproul, Davis, Knutson, Byram, Hill, Rushing, Wallace, Christensen, and LeClair to “do

something” to stop CMU inmates from filing grievances. (Doc. 1-1, p. 10). Blanckensee, Nelson,

Noland, Stallard, Pattios, Winter, Siereveld and Knutson directed Schreiber and Wallace to find

ways to reject BP-9 appeals on procedural grounds. Rushing was instructed to delay responses to

BP-8 forms as long as possible. (Doc. 1-1, p. 11). Thereafter, Plaintiff experienced lengthy delays

in obtaining responses to his administrative complaints and received at least one rejection of a BP-

9 form because it was not “worded the same” as his BP-8, which Plaintiff contends is not a

requirement of the Administrative Remedy Program. (Doc. 1-1, pp. 11-12).

In early April 2021, Rushing left the CMU and was replaced by Simpkins, who has

repeatedly refused to provide Plaintiff and other inmates with BP-8, BP-9, BP-10, and BP-11 forms

to enable them to file legitimate grievances, in violation of federal regulations and rules. Plaintiff

asserts that Simpkins’ refusal is at the behest of Blanckensee and the other Defendants at the BOP’s

North Central Regional Office (Nelson, Pattios, Stallart, Winter, Noland, Siereveld, and Knutson).

(Doc. 1-1, p. 12). Marion Warden Sproul and the other Defendants have made the Administrative

Remedy Program a “dead-end” for Plaintiff and other CMU inmates by refusing to grant any relief

for administrative complaints. (Doc. 1-1, p. 13).

Plaintiff outlines five claims for relief (detailed below). He seeks injunctive relief for the

APA claim (Count 3) and damages for the other claims. (Doc. 1-1, pp. 13-16).

Based on the allegations in the Complaint and the Court’s order substituting the United

States, the Court designates the following claims in this pro se action:

Count 1: Claim under Illinois law for civil conspiracy against the United

States of America for the BOP officials’ agreement to deny Plaintiff

access to the Administrative Remedy Program by refusing to

provide necessary forms, delaying responses to his grievances, and

rejecting them for improper reasons.

Count 2: First Amendment claim against the individual Defendants for

denying Plaintiff’s right to petition the government for redress of

grievances, by refusing to provide him with Administrative Remedy

forms, delaying responses, rejecting them for improper reasons, and

refusing to provide any relief via the Administrative Remedy

Program.

Count 3: Administrative Procedure Act claim under 5 U.S.C. § 706(2)(A)

against the United States of America, for arbitrarily, capriciously,

and unlawfully obstructing and denying Plaintiff’s access to the

Administrative Remedy Program.

Count 4: Claim under Illinois law for negligence against the United States of

America for the BOP officials’ refusal to provide Plaintiff with

access to the Administrative Remedy Program.

Count 5: Claim under Illinois law for intentional infliction of emotional

distress against the United States of America the BOP officials’

refusal to provide Plaintiff with access to the Administrative

Remedy Program.

Any other claim that is mentioned in the Complaint but not addressed in this Order should be

considered dismissed without prejudice as inadequately pled under the Twombly pleading

standard.2

DISCUSSION

Count 1 – Civil Conspiracy

This claim, as well as the claims in Counts 4 and 5, is based on Illinois law and is governed

2 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim upon which

relief can be granted if it does not plead “enough facts to state a claim that is plausible on its face.”).

by the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq.; (Doc. 10, p. 3). Section

2679(d)(4) of the FTCA provides that, as here, when the United States is substituted for individual

federal-employee defendants following certification by the Attorney General that the employees

were acting within the scope of their office/employment, the action “shall proceed in the same

manner as any action against the United States filed pursuant to section 1346(b) of this title and

shall be subject to the limitations and exceptions applicable to those actions.” 28 U.S.C.

§ 2679(d)(4). Section 1346(b) establishes district court jurisdiction over “civil actions on claims

against the United States, for money damages … 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”

where the law of the place of occurrence would provide for liability. 28 U.S.C. § 1346(b)(1).

Under Illinois law, to prevail on a claim for civil conspiracy, a Plaintiff must show: “(1) an

agreement between two or more persons for the purpose of accomplishing either an unlawful

purpose or a lawful purpose by unlawful means; and (2) at least one tortious act by one of the co-

conspirators in furtherance of the agreement that caused an injury to the plaintiff.” Borsellino v.

Goldman Sachs Grp., Inc., 477 F.3d 502, 509 (7th Cir. 2007) (citing McClure v. Owens Corning

Fiberglas Corp., 720 N.E.2d 242, 258 (Ill. 1999)).

In this case, Plaintiff seeks money damages based on his allegations that the individual

BOP employees at Marion and in the BOP’s regional office agreed to prevent him from using the

BOP’s Administrative Remedy Program, which was established by federal regulations and BOP

policy to enable federal inmates to bring complaints to the attention of prison officials and seek

resolution. (Doc. 1-1, pp. 8-9, 13-14). Based on that agreement, he claims Marion officials took

various actions to hinder his ability to file administrative grievances and/or to obtain responses to

his complaints. At this early stage, Count 1 survives review under § 1915A and will proceed for

further consideration against the United States.

Count 2 – First Amendment

The Court construed this First Amendment claim as having been brought pursuant to

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). (Doc. 10, pp. 3-4). Bivens recognized

an implied civil damages remedy against individual federal officers who allegedly violated the

plaintiff’s federal constitutional rights under the Fourth Amendment. Bivens “authorizes the filing

of constitutional tort suits against federal officers in much the same way that 42 U.S.C. § 1983

authorizes such suits against state officers.” King v. Fed. Bureau of Prisons, 415 F.3d 634, 636

(7th Cir. 2005). But Bivens and Section 1983 are not the same, and the Supreme Court has

recognized only two other instances in which an implied damages remedy is available for a

constitutional deprivation. Davis v. Passman, 442 U.S. 228 (1979) (Fifth Amendment sex

discrimination claim); Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment claim for denial

of medical care for a serious medical condition). Recent cases have declined to extend a Bivens

remedy to contexts beyond the Fourth Amendment’s protection against unreasonable search and

seizure and stated that further expansion of Bivens is a “disfavored judicial activity.” Ziglar v.

Abbasi, 582 U.S. --, 137 S. Ct. 1843 (2017) (declining to extend Bivens to Fifth Amendment due

process/conditions of confinement/abuse and equal protection claims; and to Fourth/Fifth

Amendment strip search claims); Egbert v. Boule, -- U.S. --, 142 S. Ct. 1793 (2022) (no Bivens

remedy for First Amendment retaliation claim or Fourth Amendment excessive force claim).

Here, Count 2 is based on an alleged violation of Plaintiff’s First Amendment right to

petition the government for redress of grievances. (Doc. 1-1, pp. 14-15). At its core, such a claim

boils down to a claim for denial of access to the courts. See Delgado v. Godinez, 683 F. App’x 528

(7th Cir. 2017). In the Section 1983 context, a plaintiff who pursues such a claim “must identify

an underlying nonfrivolous claim that the prison officials’ actions impeded.” Delgado, 653 F.

App’x at 529 (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis v. Casey, 518 U.S.

343, 351-53 (1996). Plaintiff has failed to identify an underlying nonfrivolous claim that he was

unable to pursue in court due to Defendants’ actions.3 The one example he mentions relates to

claims he is now pursuing in this Court in Case No. 21-cv-812-JPG, thus no denial of access to the

courts is apparent.

As the Delgado court observed:

[Plaintiff] appears to be confusing the right to grieve with the right to a grievance

process. He has a First Amendment right to “petition the government for a redress

of grievances,” Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996), but he

does not have a substantive due process right to an effective prison grievance

process, see Grieveson v. Anderson, 538 F.3d 763, 772 (7th Cir. 2008). If as a

practical matter the grievance process is so ineffective as to be unavailable to the

prisoner, the only consequence is that he is relieved of the duty to exhaust.

Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016).

Delgado, 653 F. App’x at 530 (emphasis in original).

The same is true here. If Plaintiff’s claim that he was denied access to an effective prison

grievance procedure were considered in the more expansive § 1983 context, it would be dismissed

on its merits for failure to state a claim upon which relief may be granted. In the Bivens context

applicable here, there is no justification for the extension of a Bivens remedy to a First Amendment

claim that is not even cognizable under § 1983. The Supreme Court’s recent guidance on the

narrow scope of Bivens underscores that allowing this claim to proceed would be an improper

3 The Complaint references only one administrative complaint which Plaintiff claims was improperly

rejected – his grievance over Defendant Hill’s refusal to notarize state court documents he attempted to file

in Arizona state court. (Doc. 1-1, p. 12). That matter is the subject of Plaintiff’s separate lawsuit now

proceeding in this Court under Case No. 21-cv-812-JPG. Plaintiff chose not to pursue his Bivens claim

related to that incident, and this Court dismissed his APA counts in that case for failure to state a claim

upon which relief may be granted. Plaintiff’s FTCA claims for civil conspiracy, negligence, and intentional

infliction of emotional distress were allowed to proceed past threshold review. (Doc. 14 in Case No. 21-

812-JPG).

expansion of Bivens. Egbert, 142 S. Ct. 1793; Abbasi, 137 S. Ct. 1843; see also Smadi v. True,

2021 WL 2853262, Case No. 18-cv-2149-JPG (S.D. Ill. July 8, 2021).

For these reasons, the First Amendment Bivens claim in Count 2 will be dismissed without

prejudice for failure to state a claim upon which relief may be granted. The individual Defendants

will be dismissed from this action without prejudice.

Count 3 – Administrative Procedure Act

Referencing the BOP officials’ obstruction and denial of Plaintiff’s access to the

Administrative Remedy Program at Marion, Plaintiff requests this Court to enter “an injunction

under 5 U.S.C. 702, 706(2)(A), setting [Defendants’] actions/omissions aside.” (Doc. 1-1, p. 15).

The APA provides for judicial review of an agency action that adversely affects a person.

5 U.S.C. § 702. An aggrieved person may bring an action against the United States “seeking relief

other than money damages[.]” Id. Section 706(2)(A) of the APA directs that the reviewing court

shall “hold unlawful and set aside agency action, findings, and conclusions found to be …

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]”4

If Plaintiff were still incarcerated at Marion and still subject to BOP officials’ alleged

obstruction of his access to the prison grievance procedure, review pursuant to the APA could

result in meaningful injunctive relief. However, Plaintiff has been housed at the federal prison in

Terre Haute, Indiana since September 2021. (Doc. 9). He is therefore obviously no longer being

deprived of access to the Administrative Remedy Program at Marion, which is the focus of his

claim. Under these circumstances, the Court concludes that Count 3 no longer presents a live case

or controversy that might result in meaningful relief if Plaintiff were to prevail on this claim. See

4 Section 706(1) of the APA directs that a court sitting in review of an agency action shall “compel agency

action unlawfully withheld or unreasonably delayed[.]” Plaintiff does not request an order compelling any

action on the part of Defendants.

Olson v. Brown, 594 F.3d 577, 580 (7th Cir. 2010) (“A case is moot when ‘the issues presented

are no longer “live” or the parties lack a legally cognizable interest in the outcome.’”) (quoting

United States Parole Commission v. Geraghty, 445 U.S. 388, 396 (1980)); see also Lehn v.

Holmes, 364 F.3d 862, 871 (7th Cir. 2004) (“when a prisoner who seeks injunctive relief for a

condition specific to a particular prison is transferred out of that prison, the need for relief, and

hence the prisoner’s claim, become moot.”). Only if Plaintiff can show a realistic possibility that

he would again be incarcerated at Marion under the conditions described in the Complaint, would

it be proper for the Court to consider injunctive relief. See Maddox v. Love, 655 F.3d 709, 716 (7th

Cir. 2011) (citing Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir. 2009)).

Accordingly, the APA claim in Count 3 will be dismissed without prejudice as moot.

Count 4 – Negligence

As noted under Count 1, this claim against the United States is governed by the FTCA.

Under Illinois law, to state a claim for negligence, a complaint must allege facts to establish that

the defendant owed the plaintiff a duty of care, breached that duty, and that the breach was the

proximate cause of the plaintiff’s injury. Thompson v. Gordon, 948 N.E.2d 39, 45 (Ill. 2011).

Here, Plaintiff asserts that the acts and omissions of the BOP officials who prevented him

from accessing the Administrative Remedy Program amounted to negligence. The Court accepts

the premise that officials had a duty to provide Plaintiff the opportunity to file administrative

grievances and appeals according to this established program.

As for the “injury” component of a negligence claim, Plaintiff states he was unable to file

“legitimate, non-frivolous grievances” as a result of being denied the necessary forms to submit

Administrative Remedy requests, and says that officials’ refusal to consider those grievances he

did file and refusal to grant any relief made Marion’s Administrative Remedy Program a “dead-

end,” depriving him of any opportunity to obtain resolution of his complaints within the institution.

(Doc. 1-1, pp. 12-13). While inmates do not have a right to a favorable outcome of an

administrative complaint, at this early stage the Court accepts the notion that the deprivation of

any meaningful access to the Administrative Remedy Program amounts to an injury proximately

caused by the BOP officials’ actions/omissions. Count 4 may therefore proceed for further

consideration.

Count 5 – Intentional Infliction of Emotional Distress

Count 5 is likewise governed by the FTCA. (See Counts 1 and 4 above). In order to state a

claim under Illinois law for intentional infliction of emotional distress, Plaintiff must show that

the BOP officials acted in an extreme and outrageous way, intending to inflict severe emotional

distress or knowing there was a high probability that would occur, and that their actions in fact

caused him severe emotional distress. See Doe v. Calumet City, 641 N.E.2d 498, 506-07 (Ill. 1994)

(citing Restatement (Second) of Torts § 46, comment d (1965)). Plaintiff alleges that BOP officials

intentionally refused to provide him with complaint forms and otherwise hindered his access to

the Administrative Remedy Program, that their actions were intended to cause him emotional

distress, and that he suffered extreme anxiety, depression, and sadness as a result. At this stage,

Count 5 also survives § 1915A review and may proceed.

DISPOSITION

IT IS HEREBY ORDERED that Count 2 is DISMISSED without prejudice for failure

to state a claim upon which relief may be granted. Count 3 is DISMISSED without prejudice as

moot. Defendants Schreiber, LeClair, Wallace, Sproul, Christensen, Davis, Byram, Rushing,

Simpkins, Hill, Blanckensee, Nelson, Pattios, Stallart, Winter, Noland, Siereveld, and Knutson are

DISMISSED without prejudice from the action.

IT IS FURTHER ORDERED that Counts 1, 4, and 5 survive § 1915A review and will

proceed as FTCA claims against the United States of America.

The Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a summons and form

USM-285 for service of process on the United States; the Clerk shall issue the completed

summons. The United States Marshals SHALL serve the United States pursuant to Rule 4(e) of

the Federal Rules of Civil Procedure. All costs of service shall be advanced by the United States,

and the Clerk shall provide all necessary materials and copies to the United States Marshals

Service.

In addition, pursuant to Federal Rule of Civil Procedure 4(i), the Clerk shall (1) personally

deliver to or send by registered or certified mail addressed to the civil-process clerk at the office

of the United States Attorney for the Southern District of Illinois a copy of the summons, the First

Amended Complaint (Doc. 13), and this Memorandum and Order; and (2) send by registered or

certified mail to the Attorney General of the United States at Washington, D.C., a copy of the

summons, the First Amended Complaint (Doc. 13), and this Memorandum and Order.

Defendant is ORDERED to timely file an appropriate responsive pleading to the

Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g). Pursuant to

Administrative Order No. 244, Defendant need only respond to the issues stated in this Merit

Review Order.

Plaintiff is ADVISED that if judgment is rendered against him and the judgment includes

the payment of costs under 28 U.S.C. §1915, he will be required to pay the full amount of the

costs, even though his application to proceed without payment of fees was granted by the state

court. See 28 U.S.C. § 1915(f)(2)(A).

Finally, Plaintiff is reminded that he is under a continuing obligation to keep the Clerk of

Court and the opposing parties informed of any change in his address; the Court will not

independently investigate his whereabouts. This shall be done in writing and not later than 7 days

after a transfer or other change in address occurs. Failure to comply with this order will cause a

delay in the transmission of court documents and may result in dismissal of this action for want of

prosecution. See FED. R. CIV. P. 41(b).

IT IS SO ORDERED.

DATED: 6/30/2022

s/ J. Phil Gilbert_____

J. PHIL GILBERT

United States District Judge

Notice to Plaintiff

The Court will take the necessary steps to notify the appropriate defendants of your lawsuit

and serve them with a copy of your Complaint. After service has been achieved, the defendants

will enter an appearance and file an Answer to your Complaint. It will likely take at least 60 days

from the date of this Order to receive the defendants’ Answer, but it is entirely possible that it will

take 90 days or more. When all the defendants have filed Answers, the Court will enter a

Scheduling Order containing important information on deadlines, discovery, and procedures.

Plaintiff is advised to wait until counsel has appeared for the defendants before filing any motions,

to give the defendants notice and an opportunity to respond to those motions. Motions filed before

defendants’ counsel has filed an appearance will generally be denied as premature. Plaintiff need

not submit any evidence to the Court at this time, unless specifically directed to do so.