The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHELDON OLIVER,
#2786-045,
Plaintiff, Case No. 22-cv-00056-SPM
v.
E. WILLIAMS,
ASSOC. WARDEN CHEEKS,
ASSOC. WARDEN SANTIAGO,
CAPT. GORE,
LT. PHILLIPS,
FEDERAL CORRECTIONAL
INSTITUTE STAFF,
GOODFIELD,
MRS. ELDERS,
NURSE BROWN,
NURSE KELLEY,
NURSE MAXEY,
NURSE WILLIAMS
Defendants.
MEMORANDUM AND ORDER
MCGLYNN, District Judge:
Plaintiff Sheldon Oliver, an inmate in the custody of the Federal Bureau of Prisons and
currently being held at the federal medical center located in Lexington, Kentucky (FMC
Lexington), commenced this action by filing a demand letter to FCI Greenville staff directing them
to rebut allegations in his affidavit regarding COVID-19 procedures. (Doc. 1). The Court struck
the document, as it was an inadequate complaint. Plaintiff was granted leave to file a valid signed
complaint. (Doc. 7). Plaintiff timely filed a complaint, which was dismissed for failure to state a
claim to 28 U.S.C. § 1915A. The Court gave Plaintiff another opportunity to replead his claims in
an amended complaint.
The First Amended Complaint is now before the Court for preliminary review pursuant to
Section 1915A. Any portion of the First Amended 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 FIRST AMENDED COMPLAINT
Plaintiff alleges that he contracted COVID-19 due to the conditions at FCI Greenville.
(Doc. 20, p. 6). He states that he was not given cleaning supplies and the showers, phones, and
computers were not sanitized. Additionally, Warden Williams, Associate Warden Cheeks,
Associate Warden Santiago, Captain Gore, Lieutenant Phillips, correctional officers, and staff
brought in “new inmates from the streets serving food.” Plaintiff asserts that Warden Williams
stated that “they were trying something” and what they were trying was not working. (Id.).
Plaintiff further alleges that after contacting COVID-19, he was forced to lay on the floor
of his cell because he was unable to climb up into his bunk bed. (Doc. 20, p. 5). He was not given
food or water, and the only medication he was provided was Tylenol. He seeks money damages
for the “after affects” he is experiencing due to “staff not doing [their] job and not having cleaning
supplies to sanitize [the] cell.” (Id. at p. 7).
PRELIMINARY DISMISSALS
The Court must dismiss any claims brought against Defendants Goodfield, Elders, Brown,
Kelley, Maxey, and Nurse Williams. Plaintiff lists these individuals as defendants but does not
assert any claims against them in the statement of claim. Plaintiffs are required to associate specific
defendants with specific claims, so that defendants are put on notice of the claims brought against
them and so they can properly answer the complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007); FED. R. CIV. P. 8(a)(2). Where a plaintiff has not included a defendant in his
statement of the claim, the defendant cannot be said to be adequately put on notice of which claims
in the complaint, if any, are directed against him. Furthermore, merely invoking the name of a
potential defendant is not sufficient to state a claim against that individual. See Collins v. Kibort,
143 F.3d 331, 334 (7th Cir. 1998). Accordingly, Defendants Goodfield, Elders, Brown, Kelley,
Maxey, and Nurse Williams are dismissed.
Plaintiff has attempted to state claims against unknown parties or groups of parties by
naming Federal Correctional Institute Staff and Medical Staff as defendants. Any claims against
this group of defendants are also dismissed. While Plaintiff may use “John Doe” or “Jane Doe” to
refer to parties whose names are unknown, he must still follow Federal Rule of Civil Procedure 8
pleading standards and include a short, plain statement of the case against that individual. He does
not describe the unknown defendants or identify particular acts or omissions by any specific
individuals who allegedly violated his constitutional rights or statutory rights. Thus, Federal
Correctional Institute Staff and Medical Staff are also dismissed.
Finally, the Court also dismisses any claims Plaintiff is attempting to assert regarding
inadequate medical care, as these allegations are not asserted against a named Defendant.
DISCUSSION
For the following reasons, the First Amended Complaint does not survive preliminary
review pursuant to Section 1915A. Plaintiff indicates on the civil rights complaint form that he is
bringing this case pursuant Bivens and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346,
2671-2680. The FTCA explicitly authorizes “civil actions on claims against the United States, for
money damages…for …personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his office or
employment.” 28 U.S.C. § 1346(b)(1). However, the United States is the only proper defendant in
an FTCA action. Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008); Hughes v. United States,
701 F.2d 56, 58 (7th Cir. 1982); 28 U.S.C. § 2679(b). Because Plaintiff has not named the United
States as a defendant herein, he cannot proceed under the FTCA. Accordingly, the FTCA claims
shall be dismissed without prejudice, and all claims in this action shall be treated as being brought
pursuant to Bivens.
When presented with a proposed Bivens claim, a district court must undertake a two-step
inquiry. See Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020). First, a 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, 582 U.S. at 138-140.
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 alleges that he was kept in unsafe conditions and ultimately contracted COVID-
19 due to the COVID-19 policies and practices implemented, or lack thereof, at FCI Greenville.
Plaintiff appears to be bringing an Eighth Amendment conditions of confinement claim.
“[G]enerally courts have declined to expand the scope of Bivens actions into the ‘new context’ of
federal prisons’ COVID-mitigation policies not directly related to medical treatment.” Skyberg v.
Marske, No. 22-cv-591-jdp, 2022 WL 16715463, at *2 (W.D. Wisc. Nov. 4, 2022) (citing Blanding
v. Fed. Bureau of Prisons, No. CV 21-1115, 2021 WL 5139912, at *6 (E.D. Pa. Nov. 4, 2021)
(“Authorizing Bivens actions for damages regarding federal jails’ COVID-19 practices would
undoubtedly impose a large burden on the judiciary, which is not equipped to litigate these issues
without Congressional guidance.” (internal quotation omitted)); Hill v. Healy, No. 22-CV-203-PP,
2022 WL 3213260, at *5 (E.D. Wis. Aug. 9, 2022) (“All these factors counsel against this lower
court expanding the reach of Bivens to include a conditions-of-confinement claim based on alleged
failures to take precautions to protect incarcerated persons from COVID-19.”); Greer v. Caravajal,
No. 22-cv-00334-VBF (JDE), 2022 WL 4826513, at *7 (C.D. Cal. June 30, 2022), report and
recommendation adopted sub nom. Greer v. Carvajal, No. 22-cv-00334-VBF (JDE), 2022 WL
4842927 (C.D. Cal. Sept. 30, 2022)).
This Court agrees with these courts that Plaintiff’s claims, to the extent he is alleging
unconstitutional conditions due to insufficient or improper COVID policies, constitute a new
Bivens context and special factors counsel against expanding Bivens into this area. Plaintiff, as a
federal inmate, has an avenue of relief through the Bureau of Prison’s Administrative Remedy
Program. See 28 C.F.R. §542.10 et seq. Through this alternative remedial structure, Plaintiff could
seek “formal review an issue relating to any aspect of his[] own confinement.” 28 C.F.R.
§542.10(a). The Supreme Court has directed that “a court may not fashion a Bivens remedy if
Congress already has provided, or has authorized the Executive to provide, an alternative remedial
structure.” Egbert v. Boule, 142 S. Ct. 1793, 1804 (2022) (internal citations and quotations
omitted). Whether or not the Administrative Remedies Program provided Plaintiff with the relief
he sought is irrelevant to the Court’s analysis, as “the question of whether a given remedy is
adequate is a legislative determination that must be left to Congress, not the federal courts.” Id. at
1807. Accordingly, the Court finds that the Administrative Remedy Program forecloses a Bivens
claim for Plaintiff’s allegations of unconstitutional conditions of confinement, and his claim is
dismissed without prejudice. See Snowden v. Henning, No. 21-1463, 2023 WL 4195838, at *2 (7th
Cir. June 27, 2023) (a court cannot extend Bivens if even there is one rational reason to “think that
Congress is better suited to weigh the costs and benefits of allowing a damages action to proceed”)
(citations omitted).
LEAVE TO AMEND
The Court will allow Plaintiff one more opportunity to amend his complaint. If the Court
does not receive an amended complaint by the deadline the Court sets, the Court will dismiss the
case for failure to state a claim and Plaintiff will incur a strike under 28 U.S.C. § 1915(g). If after
reading this Order Plaintiff decides he does not want to proceed with the lawsuit, he may notify
the Court (before the deadline to amend) that he wants to voluntarily dismiss the case, and he can
avoid incurring a strike.
DISPOSITION
For the reasons stated above, the First Amended Complaint is DISMISSED without
prejudice for failure to state claim for relief pursuant to Section 1915A.
Plaintiff is GRANTED leave to file a “Second Amended Complaint” on or before July 27,
2023. Should Plaintiff fail to file a Second Amended Complaint within the allotted time or
consistent with the instructions set forth in this Order, the entire case shall be dismissed with
prejudice for failure to state claim, failure to comply with a court order, and/or for failure to
prosecute his claims. FED. R. CIV. P. 41(b); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997);
Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2). In the alternative, by
July 27, 2023, Plaintiff may notify the Court that he wants to voluntarily dismiss the case, and he
can avoid incurring a strike.
It is strongly recommended that Plaintiff use the civil rights complaint form designed for
use in this District. He should label the form, “Second Amended Complaint,” and he should use
the case number for this action (No. 22-cv-00056-SPM). To enable Plaintiff to comply with this
Order, the CLERK is DIRECTED to mail him a blank civil rights complaint form.
An amended complaint generally supersedes and replaces the original complaint, rendering
the original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.
1 (7th Cir. 2004). The Second Amended Complaint must stand on its own without reference to any
previous pleading. The Second Amended Complaint is also subject to review pursuant to 28 U.S.C.
§ 1915A.
Plaintiff is ADVISED 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: June 29, 2023
s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
United States District Judge