# Pace v. USP Marion

> District Court, S.D. Illinois · July 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10155211

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** July 7, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10155211. Public record. Not legal advice.