# CROSBY v. KALLIS

> District Court, S.D. Indiana · September 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10766433

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** September 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10766433

## How later opinions describe it (automated extraction)

- finding the district court properly dismissed a federal prisoner's Fifth Amendment due process claim for a deputy marshal's alleged intentional deprivation of a prisoner's property because Congress provided an adequate post-deprivation remedy under 31 U.S.C. § 3724(a)

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JEFFREY ROY CROSBY, )
)
Plaintiff, )
)
v. ) No. 2:24-cv-00060-JPH-MG
)
J. KALLIS Complex Warden, )
OFFICER JANE DOE A-2 Unit, )
SAJNAJ Officer, )
TURNER Unit Manager, )
COX P.A., )
)
Defendants. )
ORDER DISMISSING COMPLAINT AND DIRECTING FILING OF AMENDED
COMPLAINT
Plaintiff Jeffrey Crosby is a prisoner currently incarcerated at Terre Haute
Federal Correctional Institution. He filed this civil action alleging various
deprivations of his constitutional rights. Because the plaintiff is a "prisoner," this
Court has an obligation to screen the complaint before service on the defendants.
28 U.S.C. § 1915A(a), (c).
I. Screening Standard
When screening a complaint, the Court must dismiss any portion that is
frivolous or malicious, fails to state a claim for relief, or seeks monetary relief
against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). To
determine whether the complaint states a claim, the Court applies the same
standard as when addressing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). See Schillinger v. Kiley, 954 F.3d 990, 993 (7th Cir. 2020).
Under that standard, a complaint must include "enough facts to state a claim to
relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). "A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
Court construes pro se complaints liberally and holds them to a "less stringent
standard than formal pleadings drafted by lawyers." Cesal v. Moats, 851 F.3d
714, 720 (7th Cir. 2017).
II. The Complaint
The complaint names as defendants: (1) FCI Terre Haute Warden J. Kallis;
(2) Physician's Assistant Cox; (3) Officer Jane Doe; (4) Officer SajNaj; and (5) F-1
Unit Manager Turner.1

A. Failure-to-Protect and Medical-Care Claims
Mr. Crosby alleges that he is 72 years old and in poor health. In 2015,
after being stabbed at another prison, Mr. Crosby was transferred to FCI Terre
Haute to be put into protective custody. On January 16, 2023, Mr. Crosby was
brutally assaulted by a new cellmate who was known to be a violent gang
member who previously assaulted several other cellmates. X-rays and a

1 Mr. Crosby attached exhibits to his complaint. While the Court may consider
documents attached to a complaint, it is a plaintiff's burden to plead a short and plain
statement of the claim. Fed. R. Civ. P. 8(a)(2); Williamson v. Curran, 714 F.3d 432, 436
(7th Cir. 2013). These exhibits appear to be evidence in support of the claims alleged in
complaint. To consider the exhibits at this point would circumvent the "short and plain
statement requirement" of Rule 8(a)(2) and impose an unjustified burden on the Court.
The Court will not sift through these documents and try to discern their potential
relevance at the pleading stage. Kadamovas v. Stevens, 706 F.3d 843, 844 (7th Cir.
2013) (stating that attachments to a complaint may be stricken).
subsequent CT scan revealed that Mr. Crosby's skull was broken in several
places, and that his cheek plate had separated. Mr. Crosby was told he would be
seen by an outside specialist for treatment, but as of the filing of the complaint

on February 20, 2024, that had not yet happened. Mr. Crosby also asserts that
he sustained broken ribs and a broken finger in the attack and continues to
suffer extreme pain from it. Mr. Crosby's complaint does not clearly indicate
which named defendant(s) he wants to sue for these claims. Liberally construed,
however, Mr. Crosby may be alleging that P.A. Cox delayed obtaining an x-ray
for his finger for a few weeks, as described further below.
B. Claims Against P.A. Cox and Resulting Discipline
On January 24, 2023, Mr. Crosby saw P.A. Cox, who told him that his

skull was broken in more than one place. Mr. Crosby told P.A. Cox that his ribs
and left index finger were also broken. P.A. Cox told him to "watch the callout"
for an x-ray and "to immediately come to medical and see him" if Mr. Crosby
"had any problems whatsoever." Dkt. 1, p. 5.
The next morning, while at the morning "pill line," Mr. Crosby went into
medical and requested an x-ray of his finger. P.A. Cox said "What, are you getting
beat up every day?" Id. Mr. Crosby did not like P.A. Cox saying this in front of
other inmates and told him to "shut up." Id. Rather than arranging from Mr.

Crosby to have his finger x-rayed at that time, P.A. Cox instead took him to a
Lieutenant's office. Mr. Crosby was disciplined for being "insolent to staff," and
Warden Kallis did not respond to Mr. Crosby's request for the incident report to
be expunged. Id. Mr. Crosby was placed in segregation for 90 days and received
90 days of commissary and phone restrictions because of this incident report.
Mr. Crosby's finger ultimately was x-rayed about 2-3 weeks after he was placed
into segregation.

C. Claims Regarding Theft of Property
For several months in 2023, Mr. Crosby was subjected to repeated thefts
of his property by other inmates and prison officials. Officer SajNaj did nothing
to investigate or try to stop those thefts. Mr. Crosby also suspects an unknown
officer assisted in at least one of the thefts. Mr. Crosby complained to Unit
Manager Turner about Officer SajNaj, to no effect. Mr. Crosby further states that
Officer SajNaj told two other inmates that Mr. Crosby had accused them of
stealing from him. Mr. Crosby suggests Officer "Jane Doe" was somehow involved

in the thefts as well, by fabricating death threats against Mr. Crosby and causing
him to be removed from his cell, during which time other inmates stole things
from his cell. Mr. Crosby filed a Federal Tort Claim Act administrative claim
about the thefts, which was denied. In July 2023, Mr. Crosby was placed in a
different unit at FCI Terre Haute and has not been the subject of any more thefts
or assaults since then.
D. Prayer for Relief
Mr. Crosby is seeking compensatory and punitive damages against all

defendants. He specifies that he is seeking damages "for deliberate indifference
from the Institution regarding medical attention, or lack thereof." Id. at p. 9. He
also seeks recovery for "any other losses shown the record of prior Tort Claims
brought since my transfer to U.S.P. Terre Haute . . . ." Id.
III. Dismissal of Complaint
Applying the screening standard to the facts alleged in the complaint, the
complaint must be dismissed for failure to state a claim upon which relief may

be granted. First, a plaintiff incarcerated at a federal prison, alleging harm
caused by a prison employee's state-law tort or torts, may be entitled to file a
lawsuit under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. ("FTCA").
However, the only proper defendant in an action pursuant to the FTCA is the
United States itself, Hughes v. United States, 701 F.2d 56, 58 (7th Cir. 1982).
Mr. Crosby did not name the United States as a defendant, and the complaint
indicates only that he wishes to sue individual actors in their personal capacities
for damages. Myles v. United States, 416 F.3d 551, 552 (7th Cir. 2005) (noting

that the composition and content of the amended complaint are entirely the
responsibility of the plaintiff, for "even pro se litigants are masters of their own
complaints and may choose who to sue-or not to sue"). Therefore, there is no
proper FTCA claim in this case as the complaint currently stands. Any claims
against the individual defendants are governed by Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Second, regarding the failure-to-protect and medical care claims, Mr.
Crosby's complaint does not indicate any personal involvement by any of the

named defendants with respect to those claims, except possibly with respect to
a delay in obtaining an x-ray for Mr. Crosby's finger that might be attributable
to P.A. Cox. To state a claim under Bivens, a plaintiff must allege that the
individual defendant was personally involved in the alleged deprivation of the
plaintiff's constitutional rights See, e.g., Steele v. Fed. Bureau of Prisons, 355
F.3d 1204, 1214 (10th Cir. 2003) (to be subject to Bivens liability, a defendant
must have had "direct, personal participation" in the constitutional violation). To

the extent that Mr. Crosby intended to name Warden Kallis as a defendant for
these claims, the Supreme Court eliminated supervisory liability for Bivens
claims in Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). "Because vicarious liability
is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official's own individual actions, has
violated the Constitution." Id. Mr. Crosby has not done so here with respect to
the medical treatment he has or has not received, except possibly for his broken
finger. Additionally, with respect to any failure-to-protect claim, the Seventh

Circuit has directly held that such a claim is not actionable under Bivens.
Sargeant v. Barfield, 87 F.4th 358 (7th Cir. 2023) ("The question before us is
whether a federal prisoner can bring a Bivens action alleging that a prison official
failed to protect him from violent attacks by his cellmates. After the Supreme
Court's recent decisions in this area, the answer is no.").
Based on the allegations about Mr. Crosby's medical-care claim about
alleged delay of Mr. Crosby's x-ray against P.A. Cox, this claim fails as a matter
of law. In Bivens,

the Court broke new ground by holding that a person
claiming to be the victim of an unlawful arrest and
search could bring a Fourth Amendment claim for
damages against the responsible agents even though no
federal statute authorized such a claim. The Court
subsequently extended Bivens to cover two additional
constitutional claims: in Davis v. Passman, 442 U.S.
228, 99 S. Ct. 2264 (1979), a former congressional
staffer's Fifth Amendment claim of dismissal based on
sex, and in Carlson v. Green, 446 U.S. 14, 100 S. Ct.
1468, (1980), a federal prisoner's Eighth Amendment
claim for failure to provide adequate medical treatment.
After those decisions, however, the Court changed
course.

Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020). Expansion of Bivens is a
disfavored judicial activity and the Supreme Court has "consistently rebuffed
requests to add to the claims allowed under Bivens." Id. at 743; see also Ziglar
v. Abbasi, 137 S. Ct. 1843, 1856 (2017) ("If the statute does not itself so provide,
a private cause of action will not be created through judicial mandate").
When asked to extend Bivens, the Court engages in a two-step inquiry.
First, it asks whether the request involves a claim that arises in a new context
or a new category of defendants. Hernandez, 140 S. Ct. at 743; Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 68 (2001). A context is "new" if it is "different in a
meaningful way from previous Bivens cases decided by this Court." Hernandez,
140 S. Ct. at 743; Abbasi, 137 S. Ct. at 1859.
Second, if the claim presents a new Bivens context, the Court then asks
whether there are any special factors that counsel hesitation about granting the
extension. Egbert v. Boule, 596 U.S. 482, 499 (2022). In applying the second
factor, a district court "faces only one question: whether there is any rational
reason (even one) to think that Congress is better suited to weigh the costs and
benefits of allowing a damages action to proceed." Id. at 1805 (cleaned up).
Additionally, "a court may not fashion a Bivens remedy if Congress already has
provided, or has authorized the Executive to provide, 'an alternative remedial
structure.'" Id. at 496 (quoting Abbasi, 137 S. Ct. at 1858). And this is true even
if the individual plaintiff alleges he does not have access to the alternative
remedy. Id. at 498 ("[W]hether a given remedy is adequate is a legislative

determination that must be left to Congress, not the federal courts.").
The closest possible analogy to Mr. Crosby's claim is Carlson. But that
case involved prison officials' failure to adequately respond for hours to a critical
medical emergency and ignoring medical advice, which led to the death of the
inmate. See Carlson, 446 U.S. at 16 n.1. Here, the Court understands Mr.
Crosby's medical-care claim against P.A. Cox to be limited to claiming a delay of
a few weeks in getting an x-ray for a broken finger. Dkt. 1 at 5. The Court cannot
conclude, especially after Egbert, that this is sufficiently parallel to Carlson to

automatically allow for a Bivens remedy. See Washington v. Fed. Bureau of
Prisons, No. 5:16-3913-BHH, 2022 WL 3701577, at *5 (D.S.C. Aug. 26, 2022)
(holding that prisoner's claim that officials failed to adequately treat his
blindness, which allegedly accelerated vision loss and caused persistent pain,
was a new Bivens context distinguishable from Carlson because it concerned "a
long term and ongoing course of medical treatment of Plaintiff's chronic, non-
fatal condition"); Prucha v. Watson, 672 F. Supp. 3d 642, 650 (S.D. Ind. 2023)
(holding that alleged failure to accommodate hearing disability was a new Bivens

context).
Because Mr. Crosby's claim presents a new Bivens context, the Court
proceeds to the special factors analysis, which in light of Ziglar and Egbert is
brief. The Bureau of Prison's administrative remedy process, 28 C.F.R. § 542.10
et seq., provides inmates with the ability to seek formal review of any complaint
related to the conditions of their confinement. Additionally, in Ziglar, the
Supreme Court recognized the availability of injunctive relief to address

conditions-of-confinement claims such as Mr. Crosby's. 582 U.S. at 144. But Mr.
Crosby is not seeking injunctive relief, only damages. The Court reiterates that
the Federal Tort Claims Act does allow recovery of damages against the United
States under certain circumstances where federal agents, including prison
officials, commit a state-law tort against an inmate. In other words, consistent
with Ziglar and Egbert, the Court concludes that Congress has established
alternative remedial structures for claims such as Mr. Crosby's, such that
expansion of a Bivens remedy in this context would be inappropriate.

Third, it appears that Mr. Crosby alleges P.A. Cox retaliated against him
by initiating a disciplinary action for telling P.A. Cox to "shut up." The Supreme
Court recently held "that there is no Bivens action for First Amendment
retaliation." Egbert, 596 at 499.2 To the extent Mr. Crosby may also be
attempting to make a claim regarding his placement in segregation against
Warden Kallis, both the Seventh Circuit and this Court have held that claims
for damages in relation to alleged due process violations in disciplinary
proceedings and placements in segregation are not actionable under Bivens.

See Fiorito v. Segal, 2022 WL 4809726 at * 3 (7th Cir. Oct. 3, 2022); Harris v.
Dunbar, 2018 WL 3574736 at * 4 (S.D. Ind. July 25, 2018).

2 Additionally, it is well-settled that inmates do not have a First Amendment right to be
"insolent" to staff. Hale v. Scott, 371 F.3d 917, 919 (7th Cir. 2004).
Fourth, Mr. Crosby accuses Unit Manager Turner, Officer SajNaj, and
Officer "Jane Doe" of conspiring to steal, or help other inmates steal, his property.
Assuming that Mr. Crosby has sufficiently stated factual allegations to support

such claims, they would not be actionable under Bivens.
A claim related to theft or other deprivation of Mr. Crosby's property would
present a new Bivens context. Expansion of a Bivens remedy in this context
would be unwarranted. Mr. Crosby has other potential avenues to pursue a claim
such as this, including but not limited to the FTCA. See Marulanda v. United
States Marshals Serv., 467 F. App'x 590, 590–91 (9th Cir. 2012) (finding the
district court properly dismissed a federal prisoner's Fifth Amendment due
process claim for a deputy marshal's alleged intentional deprivation of a

prisoner's property because Congress provided an adequate post-deprivation
remedy under 31 U.S.C. § 3724(a)); Rodriguez v. Easter, 2022 WL 356478, at *8
(D. Conn. Feb. 7, 2022) (noting that 31 U.S.C. § 3724 provided a remedy for
inmate's lost property thereby foreclosing a due process claim); Jelen v. United
States Marshals Serv., 2020 WL 1503566, at *9 (S.D.N.Y. Mar. 30, 2020) (same).
Because the Court has been unable to identify a viable claim for relief
against any particular defendant, the complaint is subject to dismissal.
IV. Opportunity to File an Amended Complaint

The dismissal of the complaint will not in this instance lead to the
dismissal of the action at present. "The usual standard in civil cases is to allow
defective pleadings to be corrected, especially in early stages, at least where
amendment would not be futile." Abu-Shawish v. United States, 898 F.3d 726,
738 (7th Cir. 2018). In the interest of justice, the court will allow plaintiff to
amend his complaint if, after reviewing this court's order, he believes that he can
state a viable claim for relief, consistent with the allegations he has already

made. See Tate v. SCR Med. Transp., 809 F.3d 343, 346 (7th Cir. 2015) ("We've
often said that before dismissing a case under 28 U.S.C. § 1915(e)(2)(B)(ii) a judge
should give the litigant, especially a pro se litigant, an opportunity to amend his
complaint."); Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013).
The plaintiff shall have October 10, 2024, to file an amended
complaint.
The amended complaint must (a) contain a short and plain statement of
the claim showing that the plaintiff is entitled to relief, which is sufficient to

provide the defendant with fair notice of the claim and its basis; (b) include a
demand for the relief sought; and (c) identify what injury he claims to have
suffered and what persons are responsible for each such injury. In organizing
his complaint, the plaintiff may benefit from utilizing the Court's complaint form.
The clerk is directed to include a copy of the prisoner civil rights complaint form
along with the plaintiff's copy of this Order.
Any amended complaint should have the proper case number, 2:24-
cv-00060-JPH-MG, and the words "Amended Complaint" on the first page.

The amended complaint will completely replace the original. See Beal v. Beller,
847 F.3d 897, 901 (7th Cir. 2017) ("For pleading purposes, once an
amended complaint is filed, the original complaint drops out of the picture.").
Therefore, it
must set out every defendant, claim, and factual allegation the plaintiff wishes
to pursue in this action.
If the plaintiff files an amended complaint, it will be screened pursuant to

28 U.S.C. § 1915A(b). If no amended complaint is filed, this action will be
dismissed without further notice or opportunity to show cause.
The Court further reminds Mr. Crosby that Rule 18(a) of the Federal Rules
of Civil Procedure provides, "[a] party asserting a claim to relief as an original
claim, . . . may join, either as independent or as alternate claims, as many claims,
legal, equitable, or maritime, as the party has against an opposing party." "Thus
multiple claims against a single party are fine, but Claim A against Defendant 1
should not be joined with unrelated Claim B against Defendant 2." George v.

Smith, 507 F.3d 605, 607 (7th Cir. 2007). Joinder of the defendants into one
action is proper only "if there is asserted against them jointly, severally, or in the
alternative, any right to relief in respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences and if any question of law
or fact common to all defendants will arise in the action." Fed. R. Civ. P. 20(a). If
the amended complaint asserts plausible but misjoined claims, they will be
severed and proceed in separate actions and Mr. Crosby will be responsible for
the filing fee in each case.

Finally, the Court grants Mr. Crosby's motions at dkts. [11] and [12]
because this Order provides Mr. Crosby with an update on the status of his case
as requested in the motions. Additionally, Mr. Crosby requests copies of his
original complaint and attachments. The clerk is directed to attach those
documents at dkt. [1] to Mr. Crosby's copy of this Order.
SO ORDERED.
Date: 9/12/2024 Patnick \bawlove
James Patrick Hanlon
United States District Judge
Southern District of Indiana

Distribution:
JEFFREY ROY CROSBY
01961-043
TERRE HAUTE - FCI
TERRE HAUTE FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10766433. Public record. Not legal advice.