Waugh v. Sproul

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

TOMMY LEE WAUGH, #47088-074, )

)

Plaintiff, )

vs. ) Case No. 21-cv-1056-JPG

)

DAN SPROUL, )

BARBARA BLANCKENSEE, )

MICHAEL CARVAJAL, and )

KENNETH HYLE, )

)

Defendants. )

MEMORANDUM AND ORDER

GILBERT, District Judge:

Plaintiff Tommy Lee Waugh is a federal prisoner, currently incarcerated at the United

States Penitentiary in Terre Haute, Indiana. (Doc. 9). Plaintiff had previously been confined at the

United States Penitentiary in Marion, Illinois (“Marion”) in the Communications Management

Unit (“CMU”). (Docs. 1, 1-1). This case began when Plaintiff filed a Complaint in the Circuit

Court for the First Judicial Circuit, Williamson County, Illinois, while he was imprisoned at

Marion.1 (Doc. 1-1, pp. 2-9). On August 26, 2021, 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 statute, 28 U.S.C. § 1442(a)(1). (Doc. 1). Plaintiff has not objected to the

removal.

The Complaint alleges that Defendants improperly failed to provide Plaintiff with access

to state case law and statutes, specifically Arizona law. As a result, Plaintiff was unable to comply

1 Plaintiff’s Williamson County case was docketed as No. 21-L-87, filed there July 12, 2021. (Doc. 1-1, p.

2).

with the requirements to successfully file lawsuits in Arizona state court. He seeks damages and

injunctive relief. (Doc. 1-1, pp. 2-9).

This matter is before the Court for a preliminary merits review of the Complaint pursuant

to 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).

REMOVAL

The underlying case was properly removed to this federal judicial district under both the

Westfall Act, 28 U.S.C. § 2679, and the federal officer removal statute, 28 U.S.C. § 1442(a)(1).

For actions such as this one which were commenced in state court, the Westfall Act calls for

removal to the federal district court “embracing the place in which the action or proceeding is

pending.” See Osborn v. Haley, 549 U.S. 225, 230 (2007) (citing 28 U.S.C. § 2679(d)(2)). The

Southern District of Illinois includes Williamson County, Illinois, where Plaintiff filed his state

case. Section 1442(a)(1) allows removal where officers of the United States are sued in their

official or individual capacity for acts under color of such office, as Plaintiff does here.

The Westfall Act further provides that when the Attorney General certifies that a federal

employee who is sued for wrongful or negligent conduct “was acting within the scope of his office

or employment at the time of the incident out of which the claim arose,” the United States shall be

substituted as the sole defendant in the action. 28 U.S.C. § 2679(d)(2). The case then proceeds

against the U.S. under the provisions of the Federal Tort Claims Act (“FTCA”). 28 U.S.C.

§§ 1346(b), 2672, 2679(b)(1); 2679(d)(4). The FTCA establishes federal 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).

A United States Attorney may issue the certification under the Westfall Act in lieu of the

Attorney General. This certification has been submitted, showing that Defendants Sproul,

Blanckensee, Carvajal, and Hyle were employees of the Federal Bureau of Prisons (“BOP”) acting

within the scope of their federal employment at the relevant times described in Plaintiff’s

Complaint. (Docs. 1, 1-2). Accordingly, the United States will be substituted for these Defendants

for any claims brought against them under Illinois law in their individual capacity that survive

merits review, and those claims will then proceed under the FTCA.

THE COMPLAINT

Plaintiff makes the following allegations in his Complaint (Doc. 1-1): Between November

7, 2018 and October 2019, Plaintiff was housed in the Special Housing Unit (“SHU”) at the U.S.

Penitentiary in Tucson, Arizona. (Doc. 1-1, p. 7). He was placed in the SHU for allegedly violating

a court order prohibiting him from contacting his minor daughter. Plaintiff did not believe he was

in violation of that court order and believes BOP employees in Arizona violated his constitutional

rights. He attempted to file four lawsuits in the Pima County, Arizona, superior court, but his

lawsuits were returned because the fee waiver applications had not been notarized.

Defendants Sproul (Marion Warden), Blanckensee (BOP Regional Director), Carvajal

(BOP Director), and Hyle (BOP Assistant Director) refuse to place state case law, reporters, and

state statutes on the Electronic Law Library (“ELL”) system for prisoners. Without access to that

material, and not having litigated in Arizona before, Plaintiff was not aware that notarization of

his Arizona fee waiver applications was required. He asserts that he “needs full access to Arizona

state case law, reporters, and state statutes, so that he can litigate his lawsuits.” (Doc. 1-1, p. 8).

Plaintiff invokes Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) in his claims

for damages and injunctive relief. (Doc. 1-1, p. 8). He also brings a negligence claim under Illinois

law. Id.

Based on the allegations in the Complaint and Plaintiff’s articulation of his claims, the

Court designates the following claims in this pro se action:

Count 1: First Amendment denial of access to courts claim against

Defendants in their individual capacities for hindering Plaintiff from

filing conditions of confinement claims in Arizona Superior Court

for Pima County, through their policy of denying federal inmates

access to state law materials.

Count 2: Bivens claim for injunctive relief against Defendants in their official

capacities, to enjoin them from denying Plaintiff access to Arizona

state case law, reporters, and state statutes.

Count 3: Claim for negligence under Illinois law against all Defendants for

breaching their duty to provide Plaintiff with access to state case

law, reporters, and state statutes, including Arizona materials.

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

As an initial matter, Defendants assert that this case “appears to be the same case as the

one plaintiff filed as 21-L-52” in Williamson County, which was also removed to this Court and

docketed as Case No. 21-cv-812-JPG, Waugh v United States. (Doc. 1, p. 1). Case No. 21-cv-812-

JPG remains pending against the United States on three FTCA claims (civil conspiracy,

negligence, and intentional infliction of emotional distress) based on BOP employees’ refusal to

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.”).

provide Plaintiff with notary services he needed to file lawsuits in Pima County, Arizona.

Defendants are correct that the claims in this action and in Case No. 21-cv-812-JPG arose

out of BOP employees’ actions or inactions which allegedly prevented Plaintiff from filing

lawsuits in Arizona; both this case and Case No. 21-cv-812-JPG appear to involve the same four

lawsuits Plaintiff wanted to file in Pima County. Case No. 21-cv-812-JPG relates to the denial of

notary services. The instant case asserts that BOP officials failed to provide Plaintiff with access

to Arizona state case law and statutes, without which he was ignorant of that state’s requirement

that signatures on certain documents must be notarized. This case and Case No. 21-cv-812-JPG

are not duplicates. The cases may share common factual and legal questions indicating that

consolidation would be appropriate. See FED. R. CIV. P. 42(a)(2). That issue is not currently before

the Court, but may be revisited at a future date.

Count 1 – First Amendment Denial of Access to Courts

Plaintiff invokes Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) as authority

for this First Amendment claim for monetary relief. 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).

However, unlike Section 1983 constitutional claims, Bivens claims for damages are authorized

only in limited circumstances. 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. 120 (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).

Plaintiff’s First Amendment claim for damages in Count 1 is barred by the above

authorities as an unauthorized expansion of the Bivens remedy. The United States Supreme Court

has “never held that Bivens extends to First Amendment claims.” White v. True, 833 F. App’x 15,

18 (7th Cir. 2020) (citing Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012)) (upholding district

court’s decision to dismiss First Amendment mail interference claim brought pursuant to Bivens at

screening without further briefing); see also Waugh v. United States, 2022 WL 2356959, Case No.

21-cv-813-JPG (S.D. Ill. June 30, 2022); Smadi v. True, 2021 WL 2853262, Case No. 18-cv-2149-

JPG (S.D. Ill. July 8, 2021).

Accordingly, Count 1 will be dismissed without prejudice for failure to state a claim upon

which relief may be granted.

Count 2 – Injunctive Relief – Access to State Law Materials

Plaintiff also bases this claim on Bivens, and specifically seeks an order requiring

Defendants to provide him with access to Arizona state case law, reporters, and state statutes. This

request indicates that Plaintiff wishes to consult this material to revive the state cases he attempted

to file in Arizona over the 2018-2019 incidents there. However, Plaintiff stated in his First

Amended Complaint in Case No. 21-cv-812-JPG that his inability to obtain notary services caused

him to miss the deadline for filing his cases in Pima County, Arizona. (Doc. 13, p. 19, in Case No.

21-cv-812-JPG). That statement amounts to a judicial admission that Plaintiff was unable to timely

file his Arizona cases, and the Court can consider the admission in this case. See Robinson v.

McNeil Consumer Healthcare, 615 F.3d 861, 872 (7th Cir. 2010) (“A judicial admission is a

statement, normally in a pleading, that negates a factual claim that the party making the statement

might have made or considered making.”).

Because Plaintiff’s deadline to file the Arizona cases has passed, an order enjoining the

Defendants from denying him access to Arizona legal materials cannot possibly help Plaintiff to

re-file the Pima County cases in the future. The Court therefore concludes that no live case or

controversy exists for which Plaintiff could obtain meaningful injunctive relief, even if he were to

prevail on the claim in Count 2. See 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 Doc. 14, p. 6 in Case No. 21-cv-812-JPG. Accordingly, this claim will be

dismissed as moot.

Count 3 – Negligence

To state a claim for negligence under Illinois law, 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).

In this case, Plaintiff asserts that the individual Defendants had a duty to provide him access

to state law materials, particularly Arizona state case law, reporters, and statutes, and their refusal

to do so caused him to be unable to litigate his claims in Arizona state court. At this early stage,

Count 3 is not subject to dismissal pursuant to § 1915A, and the negligence claim will proceed as

an FTCA claim against the United States. The Court makes no comment on whether Sproul,

Blanckensee, Carvajal, or Hyle owed Plaintiff a duty to provide him with the state law materials

he references.

DISPOSITION

IT IS HEREBY ORDERED that Count 1 is DISMISSED without prejudice for failure

to state a claim upon which relief may be granted. Count 2 is DISMISSED without prejudice as

moot. Defendants Sproul, Blanckensee, Carvajal, and Hyle are DISMISSED without prejudice

from the action, and the Clerk of Court is DIRECTED to SUBSTITUTE the United States as the

Defendant in this matter.

IT IS FURTHER ORDERED that Count 3 survives § 1915A review and will proceed as

an FTCA claim 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).

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: 4/19/2023

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.