United States District Court, S.D. Illinois
August 12, 2005.
BOB A. CUSTARD, Inmate #02728-031, Plaintiff,
RUSSELL RAU, et al., Defendants.
The opinion of the court was delivered by: WILLIAM STIEHL, Senior District Judge
MEMORANDUM AND ORDER
This action comes before the Court on Plaintiff's motions to
strike passages from the Court's July 20, 2005, order (Doc. 14)
and to reconsider the order (Doc. 15).
Plaintiff requests that the Court strike from its July 20,
2005, order referring the case to a United States Magistrate
Judge, certain passages which the Plaintiff believes show bias
against him by the Court. The passages to which Plaintiff takes
exception are all accurate statements of the law regarding civil
litigation in which a prisoner seeks to proceed without payment
of fees under 28 U.S.C. § 1915. The Court is required to review
all such complaints before the case may proceed further.
(a) Screening. The court shall review, before
docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a
governmental entity or officer or employee of a
(b) Grounds for Dismissal. On review, the court
shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the
(1) is frivolous, malicious, or fails to state a
claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915A.
Plaintiff believes that the Court's statements that the Court
"has no choice but to allow Plaintiff to proceed" (referring to
proceeding under the dictates of section 1915A) and "based on
these standards the court is unable to dismiss these claims"
(again, under the dictates of section 1915A) show "patently
obvious bias" against him. This is incorrect. These statements
reflect the law as it currently stands, namely, that where a
Plaintiff has stated a constitutional claim, he is allowed to
proceed with his case.
Plaintiff also states that the following statement from the
July 20, 2005, is inaccurate because an exhibit submitted with
his complaint shows that he hit his shin as a result of Defendant
Plaintiff claims that the noise intentionally caused
by Rau was so loud that it caused "bleeding,
contusions, and lacerations." It is not clear to the
Court how a loud noise of short duration experienced
only weekly could cause such injuries, but at this
point the Court is not to evaluate the veracity of
Plaintiff's claims, but to take them as factually
true. See DeWalt v. Carter, 224 F.3d 607, 612
(7th Cir. 1999) (court must take factual
allegations as true and draw reasonable inferences in
This statement expresses the Court's difficulty interpreting the
Plaintiff's Statement of Claim in Section VI on pages 4 and 5 of
the complaint. In that section Plaintiff is instructed to state
the facts of his case, including "who, what, when, where, and how
you feel your constitutional rights were violated." Nowhere in
this section does Plaintiff state the nature of his injuries.
Plaintiff must state his constitutional claims on the face of his
complaint. The Court is not required to search for and make out
claims that may be buried in the pages of the exhibits submitted
to the Court.
Plaintiff also believes that the statement amounts to the Court
calling him a liar. This, too, is incorrect. The Court was
reiterating its perplexity at the incomplete statement of the
claim on the face of the complaint and then stating that the
Court is not allowed to question what seems illogical. This is an accurate statement of the law.
Based on the foregoing, Plaintiff's motion to strike portions
of the Court's July 20, 2005 order (Doc. 14) is DENIED.
Plaintiff also requests that the Court reconsider the July 20,
2005, order because Plaintiff claims that the Court improperly
dismissed the Bureau of Prisons ("BOP") as a defendant.
Technically, a "Motion to Reconsider" does not exist under the
Federal Rules of Civil Procedure. The Seventh Circuit has held,
however, that a motion challenging the merits of a district court
order will automatically be considered as having been filed
pursuant to Rule 59(e) or Rule 60(b) of the Federal Rules of
Civil Procedure. See, e.g., Mares v. Busby, 34 F.3d 533, 535
(7th Cir. 1994); United States v. Deutsch, 981 F.2d 299,
300 (7th Cir. 1992). As noted in Deutsch, "in cases where
it is unclear whether a motion challenging a judgment on the
merits is made under Rule 59(e) or Rule 60(b)," the date of
service will determine how the motion will be treated. Thus, "`if
the motion is served within ten days of the rendition of
judgment, the motion falls under Rule 59(e); if it is served
after that time, it falls under Rule 60(b).'" Id. (citations
The order was entered in this action on July 20, 2005, and the
instant motion was filed on August 2, 2005. Giving Plaintiff the
benefit of the doubt regarding mailing time, the Court finds that
the order was filed within the 10-day period. See FED.R.CIV.P.
59(e). Therefore, under Deutsch, the Court will construe the
motion as a motion to alter or amend judgment, filed pursuant to
Rule 59(e), which may only be granted if a movant shows there was
mistake of law or fact, or presents newly discovered evidence
that could not have been discovered previously. Matter of
Prince, 85 F.3d 314 (7th Cir. 1996), reh'g and suggestion
for reh'g en banc denied, cert. denied 117 S.Ct. 608; Deutsch
v. Burlington Northern R. Co., 983 F.2d 741 (7th Cir. 1993).
Upon review of the record, the Court remains persuaded that its
ruling dismissing the Bureau of Prisons was correct. Plaintiff indicates in the motion that he
"invoked jurisdiction pursuant to 28 U.S.C. §§ 1346 and
2671-2680." Nowhere on the face of the complaint does Plaintiff
indicate that he intends to proceed under the Federal Tort Claims
Act ("FTCA"), 28 U.S.C. § 2671 et seq. He did not check the box
on the complaint so indicating and he did not make any such
statement on the face of the complaint or the "brief in support
of the complaint." As such, the complaint presents a civil rights
action under Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971). The Bureau of Prisons is not subject to suit in a
Bivens action. See FDIC v. Meyer, 510 U.S. 471, 483-486
(1994). Furthermore, even if Plaintiff had properly made a claim
to proceed under the FTCA, the Bureau of Prisons would still have
been dismissed because the United States is the only proper
defendant in an FTCA action. See id. at 476. Therefore, the
instant motion (Doc. 15) is DENIED.
IT IS SO ORDERED.
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