Gibson

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

JOSEPH GIBSON, )

Plaintiff, )

)

v. ) Case No. 25-1364

)

SCOTT MOATS et al., )

Defendants. )

ORDER

COLLEEN R. LAWLESS, United States District Judge:

Before the Court is a Complaint (Doc. 1) filed by Plaintiff Joseph Gibson, an inmate

at Federal Correctional Institution Pekin (“FCI Pekin”). Plaintiff has also filed Motions

for Counsel (Doc. 6) and to Expedite (Doc. 9).

I. Complaint

A. Screening Standard

Plaintiff’s Complaint is before the Court for merit review under 28 U.S.C. § 1915A,

which requires the Court to “screen” the pleading and identify and dismiss any legally

insufficient claim or the entire action if warranted. A claim is defective if it “(1) is

frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks

monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A.

The Court accepts Plaintiff’s factual allegations as true and construes them liberally in his

favor. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). However, conclusory statements

and labels are insufficient. Enough facts must be provided to “state a claim for relief that

is plausible on its face.” Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013) (citation

omitted).

B. Factual Allegations

Plaintiff names Dr. Jeffrey Lee Ho and Dr. Scott Moats as Defendants. Plaintiff

asserts that on March 18, 2025, he was informed through a medical provider of a 2022

diagnosis of Stage 2 chronic kidney disease. Plaintiff asserts that Defendants Ho and

Moats failed to meet the standard of care in treating his known condition.

C. Analysis

Plaintiff’s complaint proceeds under Bivens v. Six Unknown Fed. Narcotics Agents,

which holds that a victim can seek damages in federal court for constitutional violations

committed by federal officers. 403 U.S. 388, 396 (1971); see also Hernandez v. Mesa, 582 U.S.

548, 553 (2017) (“Bivens … recognized for the first time an implied right of action for

damages against federal officers alleged to have violated a citizen’s constitutional

rights.”) (internal quotation marks omitted).

In Ziglar v. Abbasi, the Supreme Court explained that it applied Bivens in only three

constitutional contexts: (1) Fourth Amendment unreasonable searches and seizures, (2)

Fifth Amendment Due Process claim for gender discrimination, and (3) Eighth

Amendment deliberate indifference to medical needs. 582 U.S. 120, 130-31 (2017) (citing

Bivens, 403 U.S. at 397, Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14

(1980)). The Supreme Court has since “made clear that expanding the Bivens remedy is

now a ‘disfavored’ judicial activity[,]” which the Supreme Court has refused to extend

for decades. Ziglar, 582 U.S. at 135 (collecting cases where the Supreme Court has declined

to extend Bivens to any new context or new category of federal defendants). Specifically,

the Supreme Court held that because Bivens created a judicial remedy for damages

against federal employees rather than a legislatively created remedy such as 42 U.S.C. §

1983, a federal court should not expand Bivens unless special circumstances exist. Id. at

137.

“Prison officials violate the Eighth Amendment’s proscription against cruel and

unusual punishment when their conduct demonstrates ‘deliberate indifference to serious

medical needs of prisoners.’” Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997)

(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). To succeed on a claim of deliberate

indifference to a serious medical need, a plaintiff must satisfy a test that contains both an

objective and subjective component. Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996). Under

the objective component, a plaintiff must demonstrate that his medical condition is

sufficiently serious. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Under the subjective

component, the prison official must have acted with a “sufficiently culpable state of

mind.” Id. In the medical care context, a “deliberate indifference” standard is used. Estelle,

429 U.S. at 104. A plaintiff may establish deliberate indifference by showing that a

defendant “knew of a substantial risk of harm to the inmate and disregarded the risk.”

Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). A defendant “must both be aware of

facts from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.

Treatment decisions made by medical professionals are presumptively valid.

Collignon v. Milwaukee County, 163 F.3d 982, 989 (7th Cir. 1998). “A medical professional

is entitled to deference in treatment decisions unless ‘no minimally competent

professional would have so responded under those circumstances.’” Sain v. Wood, 512

F.3d 886, 894–95 (7th Cir. 2008) (quoting Collignon v. Milwaukee County, 163 F.3d 982, 989

(7th Cir. 1998)). Thus, to be deliberately indifferent, a medical professional’s decision

must be “such a substantial departure from accepted professional judgment, practice, or

standards, as to demonstrate that the person responsible actually did not base the

decision on such a judgment.” Collignon v. Milwaukee County, 163 F.3d 982, 989 (7th Cir.

1998) (quoting Youngberg v. Romeo, 457 U.S. 307, 323 (1982)).

Plaintiff’s overarching claim alleges Eighth Amendment violations based on his

allegations that Defendants Ho and Moats neither informed him of his Stage 2 chronic

kidney disease nor provided medical care for that medical condition, which is sufficient

to state an Eighth Amendment deliberate indifference claim against Defendants.

Plaintiff also alleges state law negligence and intentional infliction of emotional

distress claims under the Federal Tort Claims Act (“FTCA”). In this regard, Plaintiff

claims that Defendants “acted negligently” and “engaged in extreme and outrageous

conduct.” (Pl. Compl., Doc. 1 at 2-4.)

“The Federal Tort Claims Act (FTCA) gives district courts exclusive jurisdiction

over claims ‘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 while acting

within the scope of his office or employment, under circumstances where the United

States, if a private person, would be liable to the claimant in accordance with the law of

the place where the act or omission occurred.’” Keller v. United States, 771 F.3d 1021, 1022

(7th Cir. 2014) (quoting 28 U.S.C. § 1346(b)(1)) (citing 28 U.S.C. § 2674); see also F.D.I.C. v.

Meyer, 510 U.S. 471, 477–78 (1994) (explaining a constitutional tort claim is not cognizable

under the FTCA because the underlying source of substantive liability is state law, not

federal law). “The only proper defendant in an FTCA action is the United States.” Jackson

v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008); see also Stewart v. United States, 655 F.2d 741, 742

(7th Cir. 1981) (“Plaintiff has no cause of action . . . [under the FTCA] against an employee,

her exclusive remedy being an action against the United States.”).

Plaintiff does not name the United States of America as a Defendant, but even if

he had, his conclusory allegations would be insufficient to state plausible claims under

the FTCA. See Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (“Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do

not suffice.”) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Where a complaint

pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the

line between possibility and plausibility of entitlement to relief.’” Id.

II. Counsel

Plaintiff has no constitutional right to counsel, and the Court cannot require an

attorney to accept pro bono appointments in civil cases. The most the Court can do is ask

for volunteer counsel. See Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992)

(holding that although indigent civil litigants have no constitutional right to counsel, a

district court may, in its discretion, request counsel to represent indigent civil litigants in

certain circumstances). In considering Plaintiff’s Motion for Counsel, the Court must ask

two questions: “(1) has the indigent plaintiff made a reasonable attempt to obtain counsel

or been effectively precluded from doing so; and if so, (2) given the difficulty of the case,

does the plaintiff appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654

(7th Cir. 2007).

Plaintiff’s Motion for Counsel (Doc. 6) is denied because he has not satisfied his

threshold burden of demonstrating that he attempted to hire counsel, which typically

requires writing to several lawyers and attaching the responses received.

Plaintiff’s Motion to Expedite (Doc. 9) is moot given the entry of the Court’s Order.

IT IS THEREFORE ORDERED:

1) Plaintiff’s Motion for Counsel (Doc. 6) is DENIED with leave to renew.

2) Plaintiff’s Motion to Expedite (Doc. 9) is MOOT.

3) According to the Court’s screening of Plaintiff’s Complaint [1] under 28 U.S.C. §

1915A, Plaintiff states an Eighth Amendment deliberate indifference to serious

medical needs claim against Defendants Ho and Moats. Plaintiff’s claim proceeds

in Defendants’ individual capacities only. Additional claims shall not be included

in the case, except at the Court’s discretion on motion by a party for good cause

shown or under Federal Rule of Civil Procedure 15.

4) This case is now in the process of service. The Court advises Plaintiff to wait until

counsel has appeared for Defendants before filing any motions to give 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

otherwise directed by the Court.

5) The Court will attempt service on Defendants by mailing each Defendant a

waiver of service. Defendants have sixty days from service to file an Answer. If

Defendants have not filed Answers or appeared through counsel within ninety

days of the entry of this Order, Plaintiff may file a motion requesting the status

of service. After Defendants have been served, the Court will enter an order

setting discovery and dispositive motion deadlines.

6) Concerning a Defendant who no longer works at the address provided by

Plaintiff, the entity for whom that Defendant worked while at that address shall

submit to the Clerk said Defendant’s current work address, or, if not known, said

Defendant’s forwarding address. This information shall be used only for

effectuating service. Documentation of forwarding addresses shall be retained

only by the Clerk and shall not be maintained in the public docket nor disclosed

by the Clerk.

7) Defendants shall file an Answer within sixty days of the date the Clerk sends the

waiver. A motion to dismiss is not an answer. The Answer should include all

defenses appropriate under the Federal Rules. The Answer and subsequent

pleadings shall be to the issues and claims stated in this Order. In general, an

answer sets forth Defendants’ positions. The Court does not rule on the merits of

those positions unless and until Defendants file a motion. Therefore, no

response to the Answer is necessary or will be considered.

8) This District uses electronic filing, which means that after Defendants’ counsel

has filed an appearance, Defendants’ counsel will automatically receive

electronic notice of any motion or other paper filed by Plaintiff with the Clerk.

Therefore, Plaintiff does not need to mail copies of motions and other documents

that Plaintiff has filed with the Clerk to Defendants’ counsel. However, this does

not apply to discovery requests and responses. Discovery requests and responses

are not filed with the Clerk. Instead, Plaintiff must mail his discovery requests

and responses directly to Defendants’ counsel. Discovery requests or responses

sent to the Clerk will be returned unfiled unless they are attached to and the

subject of a motion to compel. Discovery does not begin until Defendants’

counsel files an appearance and the Court enters a scheduling order, which will

explain the discovery process in more detail.

9) Defendants’ counsel is granted leave to depose Plaintiff at his place of

confinement. Defendants’ counsel shall arrange the time for the deposition.

10) Plaintiff shall immediately notify the Court, in writing, of any change in his

mailing address and telephone number. Plaintiff’s failure to inform the Court of

a change in mailing address or phone number will result in the dismissal of this

lawsuit with prejudice.

11) If a Defendant fails to sign and return a waiver of service to the Clerk within

thirty days after the waiver is sent, the Court will take appropriate steps to effect

formal service through the U.S. Marshals Service on that Defendant and will

require that Defendant to pay the total costs of formal service under Federal Rule

of Civil Procedure 4(d)(2).

12) The Court directs the Clerk to enter the standard qualified protective order under

the Health Insurance Portability and Accountability Act.

13) The Court directs the Clerk to attempt service on Defendants under the standard

procedures.

ENTERED May 11, 2026.

s/ Colleen R. Lawless

____________________________________

COLLEEN R. LAWLESS

UNITED STATES DISTRICT JUDGE