Pace v. USP Marion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROGER E. PACE, #22864-026, )

)

Plaintiff, )

)

vs. ) Case No. 21-cv-01281-JPG

)

USP MARION, )

WARDEN SPROUL, )

and FBOP, )

)

Defendants. )

MEMORANDUM & ORDER

GILBERT, District Judge:

This matter is before the Court for review of the Second Amended Complaint filed by

Plaintiff Roger Pace on March 30, 2022. (Doc. 21). Plaintiff is an inmate in the custody of the

Federal Bureau of Prisons (“FBOP”) and is currently housed at the United States Penitentiary in

Marion, Illinois (“USP-Marion”). He claims that the prison’s use of two-man cells to house three

men in a bathroom-sized cell during the COVID-19 pandemic resulted in his infection with

COVID-19 and the loss of his sense of smell, in violation of his right to be free from cruel and

unusual punishment under the Eighth Amendment. (Id.). He brings this action for monetary relief

against Warden Sproul, USP-Marion, and the FBOP pursuant to Bivens v. Six Unknown Named

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

The Second Amended Complaint is subject to review under 28 U.S.C. § 1915A.

Section 1915A requires the Court to screen prisoner complaints and filter out non-meritorious

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

frivolous or 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). At this juncture, the factual allegations are

liberally construed. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

Second Amended Complaint

According to the allegations set forth in the Second Amended Complaint, Plaintiff was

forced to live in an “illegal” three-man cell that was the size of a small bathroom and designed for

two men. (Doc. 21, p. 6). During the COVID-19 pandemic, the prison made use of these cells to

house 189 inmates in a housing unit with a capacity of 126 inmates. (Id. at 7). Due to these

overcrowded living conditions, the entire unit contracted COVID-19 on at least one occasion.

Plaintiff was diagnosed with COVID-19 three different times and lost his sense of smell in the

process. (Id.). The defendants were well aware of these conditions and took no steps to ameliorate

them. (Id. at 6). Plaintiff claims that inmates were intentionally exposed to COVID-19 in an effort

by staff to establish herd immunity among the inmate population. This includes Warden Sproul,

who simply dismissed Plaintiff’s verbal complaints about the conditions. (Id. at 4-5).

Discussion

Based on the allegations, the Court finds it convenient to designate the following counts:

Count 1: Eighth Amendment claim against Warden Sproul, USP-Marion, and FBOP

for forcing Plaintiff to live in a three-man cell that posed a substantial risk

of serious harm to his health and safety in the ongoing pandemic and caused

him to contract COVID-19 three times and lose his sense of smell.

Count 2: Illinois medical negligence/malpractice claim against Warden Sproul for

forcing Plaintiff to live in a three-man cell that posed a substantial risk of

serious harm to his health and safety in the ongoing pandemic and caused

him to contract COVID-19 three times and lose his sense of smell.

Any claim that is mentioned in the Second Amended Complaint but not addressed herein is

considered dismissed without prejudice as inadequately pled under Twombly.1

1 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 to relief that is plausible on its face”).

Count 1

Bivens and its progeny provide a judicially-implied damages remedy for certain

constitutional violations caused by persons acting under color of federal authority. Bivens v. Six

Unknown Named Agents, 403 U.S. 388 (1971). However, this remedy is limited. The United

States Supreme Court has recognized it in only three contexts: (1) a Fourth Amendment claim

involving an unlawful search and seizure in Bivens; (2) a Fifth Amendment due process claim

involving gender discrimination in Davis v. Passman, 442 U.S. 228 (1979); and (3) an Eighth

Amendment claim of inadequate medical treatment in Carlson v. Green, 446 U.S. 14 (1980).

Ziglar v. Abbasi, 137 U.S. 1843, 1854-55 (2017). The Supreme Court has also cautioned lower

courts not to expand the remedy into new contexts, unless certain “special factors” warrant it, and

emphasized that all further expansion of Bivens is a “disfavored judicial activity.” Ziglar, 137

U.S. at 1859-60 (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). Just last month, the Court stated

that “in all but the most unusual circumstances, prescribing a cause of action is a job for Congress,

not the courts.” Id.

When presented with a proposed Bivens claim, a district court must undertake a two-step

inquiry. Hernandez v. Mesa, 589 U.S. at --, 140 S. Ct. 735, 741 (2020). First, the district court

asks whether the case presents a new Bivens context, i.e., whether it is meaningfully different from

the three cases in which the Supreme Court previously implied a damages action. Ziglar, 137 U.S.

at 1859-60. Second, if a claim arises in a new context, the court must consider whether any

“special factors” indicate that the Judiciary is at least arguably less equipped than Congress to

“weigh the costs and benefits of allowing a damages action to proceed.” Id. If even one reason

gives the court pause before extending Bivens into a new context, the court cannot recognize a

Bivens remedy. Hernandez, 140 S. Ct. at 743.

Plaintiff’s claim arises under the Eighth Amendment, which imposes a duty on prison

officials to provide humane conditions of confinement that include adequate food, clothing,

shelter, and medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Plaintiff alleges that he

complained about the overcrowded living conditions to the warden and was “dismissed.” This

was despite the fact that he suffered three bouts of COVID-19 and lost his sense of smell.

Whether this claim fits squarely within the confines of Carlson or presents a new context

is not clear. Moreover, this court would benefit from adversarial briefing addressing any “special

factors” which suggest that the Judiciary is less equipped than Congress to weigh the costs and

benefits of allowing a damages action to proceed. The issue of whether this claim is now

foreclosed by the United States Supreme Court’s decisions in Ziglar or Egbert can be addressed,

with the benefit of briefing, in a motion filed pursuant to Federal Rule of Civil Procedure 12 or 56.

For now, Count 1 shall proceed against Warden Sproul.

This claim does not survive review against the USP-Marion and FBOP because neither

defendant is an individual federal agent, and the implied damages remedy under Bivens does not

extend to the employer of individual federal agents. Correctional Servs. Corp. v. Malesko, 534

U.S. 61, 71-72 & n.2 (2001); Holz v. Terre Haute Reg’l Hosp., 123 F. Appx. 712 (7th Cir. 2005);

Muick v. Glenayre Elec., 280 F.3d 741, 742 (7th Cir. 2002); F.D.I.C. v. Meyer, 510 U.S. 471

(1994) (“An extension of Bivens to agencies of the Federal Government is not supported by the

logic of Bivens itself.”). Plaintiff also seeks no injunctive relief against either defendant, despite

opportunities to re-plead this claim and request such relief. Count 1 shall be dismissed with

prejudice against both defendants for failure to state a claim upon which relief may be granted.

Count 2

Plaintiff also brings a supplemental state law claim for medical negligence / malpractice.

Because this claim arises from the same case or controversy as Count 1, the Court will exercise

supplemental jurisdiction over Count 2 and allow it to proceed, at least for now, against the warden.

See 28 U.S.C. § 1367. Under applicable state law, i.e., 735 ILCS § 5/2-622, Plaintiff is required

to file an affidavit stating that “there is a reasonable and meritorious cause” for litigation of the

medical malpractice claim, along with a physician’s report in support of the affidavit. See Young

v. United States, 942 F.3d 349 (7th Cir. 2019). Plaintiff has filed neither to date, but his failure to

do so is not dispositive of his state law claim at this point. Id. However, Plaintiff is WARNED

that he must comply with the requirements set forth in 735 ILCS § 5/2-622 in order to survive

summary judgment on this claim.

Disposition

IT IS ORDERED that the Second Amended Complaint (Doc. 21) survives screening, as

follows: COUNTS 1 and 2 will proceed against Defendant WARDEN SPROUL, in his individual

capacity. However, COUNT 1 is DISMISSED with prejudice against Defendants USP-

MARION and FBOP for failure to state a claim upon which relief may be granted. Because no

other claims are stated against these defendants, the Clerk’s Office is DIRECTED to

TERMINATE USP-MARION and FBOP as parties in CM/ECF and ENTER the standard

qualified protective order pursuant to the Health Insurance Portability and Accountability Act.

Further, the Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a summons

and form USM-285 for service of process on Defendant WARDEN SPROUL; the Clerk shall

issue the completed summons. The United States Marshal SHALL serve Defendant WARDEN

SPROUL pursuant to Rule 4(e) of the Federal Rules of Civil Procedure. Rule 4(e) provides, “an

individual – other than a minor, an incompetent person, or a person whose waiver has been filed –

may be served in a judicial district of the United States by: (1) following state law for serving a

summons in an action brought in courts of general jurisdiction in the state where the district court

is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the

summons and of the complaint to the individual personally; (B) leaving a copy of each at the

individual’s dwelling or usual place of abode with someone of suitable age and discretion who

resides there; or (C) delivering a copy of each to an agent authorized by appointment or law to

receive service of process.” 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.

It is FURTHER ORDERED that Plaintiff shall serve upon Defendants, or if an

appearance has been entered by counsel, upon that attorney, a copy of every pleading or other

document submitted for consideration by this Court. Plaintiff shall include with the original paper

to be filed a certificate stating the date that a true and correct copy of the document was mailed to

each defendant or counsel. Any paper received by a district judge or a magistrate judge which has

not been filed with the Clerk or which fails to include a certificate of service will be disregarded.

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

Amended Complaint (Doc. 21) and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).

Pursuant to Administrative Order No. 244, Defendant should only respond to the issues

stated in this Merits Review Order.

If judgment is rendered against Plaintiff and includes the payment of costs under Section

1915, Plaintiff will be required to pay the full amount of the costs. 28 U.S.C. § 1915(f)(2)(A).

Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for

leave to commence this civil action without being required to prepay fees and costs or give security

for the same, the applicant and his or her attorney were deemed to have entered into a stipulation

that the recovery, if any, secured in the action shall be paid to the Clerk of the Court, who shall

pay therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule

3.1(c)(1).

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

of Court and each opposing party 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 may result in

dismissal of this action for want of prosecution. See FED. R. CIV. P. 41(b).

IT IS SO ORDERED.

DATED: 7/7/2022 s/J. Phil Gilbert

J. PHIL GILBERT

United States District Judge

Notice

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 their 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 of 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,

in order 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.

The plaintiff need not submit any evidence to the court at this time, unless otherwise directed by

the Court.