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Paul E. Kincaid v. Sangamon County

June 5, 2012

PAUL E. KINCAID, PLAINTIFF,
v.
SANGAMON COUNTY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge

E-FILED

Tuesday, 05 June, 2012 05:03:25 PM Clerk, U.S. District Court, ILCD

OPINION

Plaintiff pursues claims for deliberate indifference to his serious medical needs during his detention in the Sangamon County Jail. The case is set for a status conference on June 11, 2012. Before the Court are the pending motions which can be addressed in order to streamline the conference.

IT IS THEREFORE ORDERED:

1) The motion to substitute the United States for the federal Defendants (Cowdrey and the U.S. Marshals Service) is denied (d/e 48).

The United States does not address the possibility that Plaintiff is pursuing a Bivens claim against Defendant Cowdrey individually, which appears to be what Plaintiff intends to do. (See d/e 2, "This statement is to become part of my complaint . . . against those entities, employees and/or persons named in my 1983/Bivens action submitted to this court . . . ."). See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Plaintiff does not mention the Federal Tort Claims Act in any of his pleadings, and pursuing an FTCA claim may have consequences. The Seventh Circuit explained in Manning v. U.S., 546 F.3d 430 (7th Cir. 2008):

If a federal law enforcement officer commits a tort, the victim has two distinct avenues of relief: he may pursue a constitutional tort claim against the individual officer under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, . . ., or he may pursue a common law tort claim against the United States pursuant to the Federal Tort Claims Act ("FTCA"), . . . The latter avenue is subject to an important caveat. Under 28 U.S.C. § 2676, a judgment in an FTCA action acts as a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.

The Seventh Circuit in Manning held that a judgment against a plaintiff on his FTCA claim barred his earlier successful jury verdict in a Bivens action arising from same facts, even though the claims were brought in the same case.

The Court construes the claim against the federal defendants as a Bivens action, which is how Plaintiff describes his claim. If the Court is mistaken and Plaintiff does intend to pursue an FTCA action, he must inform the Court in writing by June 9, 2012.

2) The "U.S. Marshals Service" is not subject to a Bivens suit for damages. FDIC v. Meyer, 510 U.S. 471, 486 (1994)(federal agencies are not subject to suit for damages under Bivens). "Bivens claims are brought against the relevant officials in their individual capacity, . . . ." Bunn v. Conley, 309 F.3d 1002, 1009 (7th Cir. 2002). Accordingly, the U.S. Marshals Service and Defendant Cowdrey in his official capacity are dismissed (to the extent Plaintiff intends to sue Cowdrey in his official capacity).

3) The motion to dismiss Plaintiff's FTCA claim is denied (d/e 67) because the Court construes Plaintiff's claim as a Bivens action. The United States asserts that Judge Baker's merit review order identified an FTCA claim, but the exhaustion referred to in that order is the exhaustion required under the Prisoner Litigation Reform Act for all prisoners filing civil actions, not the exhaustion requirement under the FTCA.

4) The motion for a protective order by Defendants Beckner, et al., is granted (d/e 49). The clerk is directed to affix the Court's electronic signature to the proposed order and to docket the order. Plaintiff seeks an extension to respond this motion, but Plaintiff has had over seven weeks to respond. Plaintiff has put his own medical condition at issue, and the proposed order contains the standard provisions typically found in such a protective order and required by the Health Insurance Portability and Accountability Act. Such ...


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