Janis, Gust M. v. United States

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 18, 2006*

Decided January 20, 2006

Before

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

No. 05-1198

Appeal from the United States

GUST MARION JANIS, District Court for the Southern

Plaintiff-Appellant, District of Indiana, Indianapolis

Division

v.

No. 1:04-cv-2024-JDT-TAB

UNITED STATES OF AMERICA,

Defendant-Appellee. John Daniel Tinder,

Judge.

ORDER

Federal inmate Gust Marion Janis brought this action against the United States

(the only named defendant) seeking broadly to enjoin anyone employed by the Bureau

of Prisons from interfering with his ability to pursue administrative and judicial

remedies, whether state or federal. The district court characterized the suit as one

claiming retaliation and dismissed it without prejudice on initial screening, see 28

U.S.C. § 1915A. We affirm.

*

After an examination of the briefs and the record, we have concluded that

oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the

record. See Fed. R. App. P. 34(a)(2).

No. 05-1198 Page 2

The allegations underlying Janis’s complaint are quite narrow relative to the

relief he seeks. Janis is serving a life sentence that was imposed in 1992. See United

States v. Janis, 820 F.Supp. 512 (S.D.Cal. 1992), aff’d, 46 F.3d 1147 (9th Cir. 1995)

(unpublished opinion). In September 2004, he was transferred from a federal prison

in California to the United States Penitentiary at Terre Haute, Indiana. Shortly after

arriving there, Janis mailed an administrative claim seeking $10 million for personal

injury and property damage to the BOP’s North Central Regional Office in Kansas

City, Kansas. This was not a prison grievance, but instead a standard-form “Claim for

Damages, Injury, or Death” that must be submitted to the BOP before anyone injured

by a BOP employee—inmate or otherwise—may sue the United States under the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 267-80; see 28 C.F.R. § 14.2. Janis

alleged in his administrative claim that he was improperly transferred to Terre Haute,

that the medical facilities there are inadequate for his health conditions, that he was

refused medical treatment after the transfer, and that he was denied access to legal

materials. Of particular significance here, Janis also alleged that J. Ramer, a Unit

Manager at Terre Haute, had threatened retaliation if he pursued any legal action

against prison employees. (Janis had been at Terre Haute before and was known to

Ramer.) After receiving Janis’s administrative claim, BOP employees in Kansas City

concluded that the claim should have been submitted instead to the Western Regional

Office, where the transfer to Terre Haute was initiated. They forwarded the claim to

that office and sent a copy to Terre Haute. When Ramer became aware of the

administrative claim, he immediately lodged a disciplinary case charging Janis with

falsely accusing him of making a threat. A disciplinary committee found Janis guilty

and revoked his telephone privileges for thirty days. Janis, of course, insists that what

he said about Ramer in his administrative claim is true, and that Ramer initiated the

disciplinary case to make good on his threat.

Janis does not want damages. The goal of his suit is an injunction “to stop prison

officials and employees from hindering . . . plaintiff from redressing his

grievances . . . and punishing him” based on their content. Those whom Janis seeks to

constrain through his proposed injunction include the Attorney General of the United

States and every employee of the BOP. Janis characterized his complaint as arising

under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971), and the regulations governing grievances submitted by BOP inmates. In

dismissing Janis’s suit, the district court reasoned that it could not be maintained as

a Bivens action because under that decision the United States—the only defendant

Janis named—is not an appropriate defendant, and because Janis admittedly had

failed to exhaust his administrative remedies as required by 28 U.S.C. § 1997e(a). The

court added, moreover, that if Janis intended by suing the United States to pursue an

action under the FTCA rather than Bivens, then the suit must be dismissed because

injunctive relief is unavailable as a remedy under the FTCA, and because the statute

includes its own exhaustion requirement that Janis had not yet completed.

No. 05-1198 Page 3

We agree with the district court that the United States is not a proper defendant

under Bivens. “[T]he point of Bivens was to establish an action against the employee

to avoid the sovereign immunity that would block an action against the United States.”

Sterling v. United States, 85 F.3d 1225, 1228-29 (7th Cir. 1996); see F.D.I.C. v. Meyer,

510 U.S. 471, 484-86 (1994); Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003).

Janis did not name any prison employees as defendants, and the district court could

not properly have substituted as defendants the individuals named in the body of the

complaint. Myles v. United States, 416 F.3d 551-52 (7th Cir. 2005).

The district court was also correct that Janis failed to exhaust his

administrative remedies as he must before bringing a Bivens claim. Dismissing a

complaint for noncompliance with § 1997e(a) is inappropriate at the screening stage

unless the failure to exhaust is obvious from the face of the complaint. United States

v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005); Walker v. Thompson, 288 F.3d 1005, 1009

(7th Cir. 2002). Here, the failure to exhaust was obvious because Janis expressly

admitted this shortcoming. Janis, by way of excuse, predicted from past experiences

that he would suffer retaliation if he attempted to use the grievance procedures at

Terre Haute. But if BOP inmates believe that they would be endangered by filing a

grievance in the normal course with officials at their particular facility, see 28 C.F.R.

§§ 542.13, 542.14(c)(4), they can submit their grievances directly to a Regional Director

of the BOP, see id. § 542.14(d)(1) (“If the inmate reasonably believes the issue is

sensitive and the inmate’s safety or well-being would be placed in danger if the Request

became known at the institution, the inmate may submit the Request directly to the

appropriate Regional Director.”). Janis did not explain why he never filed a grievance

with the Regional Director, and while he claims that he had been denied the

appropriate forms during his previous stay at Terre Haute, he does not contend that

he attempted to get the proper forms this time.

In this court Janis does not dispute the district court’s conclusion that he was

trying to obtain relief under Bivens without first exhausting the grievance process. He

appears to suggest, however, that under the All Writs Act, 28 U.S.C. § 1651, the

district court could have enjoined interference with his grievances to ensure that

Janis’s ability to litigate an unexhausted Bivens claim would not be thwarted. See FTC

v. Dean Foods Co., 384 U.S. 597, 604 (1966) (recognizing a limited judicial power to

issue injunctions in aid of jurisdiction that has not yet been perfected); In re Campbell,

264 F.3d 730, 731 (7th Cir. 2001). Indeed, in a case in which prisoners intended to

challenge a prison’s grooming policy that would go into effect before they could exhaust

their administrative remedies, one of our sister circuit courts has allowed for the

possibility— without deciding the question—that a district court may have “inherent

power to protect the prisoners while they exhaust prison grievance procedures.”

Jackson v. Dist. of Columbia, 254 F.3d 262, 268 (D.C. Cir. 2001).

No. 05-1198 Page 4

It is not necessary to answer this question here, however. Janis’s complaint

cannot fairly be construed as a request for such extraordinary relief, especially when

he did not contradict the district court’s characterization of his suit until now. A

plaintiff must clearly articulate in the complaint the remedy he is seeking, Vicom, Inc.

v. Harbridge Merch. Serv., Inc., 20 F.3d 771, 775 (7th Cir. 1994), and though Janis

refers us to Dean Foods and § 1651, he did not suggest either authority to the district

court. More importantly, § 1997e(a) requires only that prisoners exhaust “available”

administrative remedies before bringing a suit about prison conditions. 42 U.S.C.

§ 1997e(a). We have held that when prison officials interfere with a prisoner’s ability

to exhaust administrative remedies, those remedies are rendered “unavailable.”

Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005); Lewis v. Washington, 300 F.3d

829, 833 (7th Cir. 2002). Thus we have difficulty envisioning a situation where a

district court would have need to stop interference with the grievance process because,

where interference occurs, the inmate may simply proceed with his lawsuit; the

affirmative defense of failure to exhaust administrative remedies will be lost for

defendants whose conduct made those remedies unavailable. Finally, as we have said,

this is not a case where Janis was at the mercy of BOP employees at his institution;

all he needed to do was submit a grievance to a Regional Director to avoid the prospect

of retaliation.

Accordingly, we AFFIRM the district court’s dismissal without prejudice of Janis’s

complaint.