The opinion of the court was delivered by: Murphy, District Judge:
Plaintiff, who was formerly incarcerated at the Marion Federal Prison Camp ("Marion"), brings this pro se civil rights action for alleged violations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).*fn1 He also asserts claims under Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. He seeks declaratory and injunctive relief as well as damages.
Plaintiff was confined at Marion from July 6, 2011, until some time in 2012, when he was transferred to the Federal Prison Camp in Duluth, Minnesota. Because of his medical condition, Plaintiff depends on a wheelchair for his mobility and had used a motorized chair prior to his incarceration (Doc. 1-1, pp. 16-18). However, upon his arrival at Marion, he was provided with a "push-only" wheelchair that he was unable to move under his own power (Doc. 1, pp. 1, 3). To further complicate matters, he was housed on the second floor of the camp facility, which was accessible only by stairs; the elevator was non-functional. There was a mobile stairclimber, but the prison-issued wheelchair would not fit on this device. Consequently, Plaintiff was forced to ascend and descend the stairs by crawling along the floor (which he describes as filthy on at least one occasion) any time he needed to use the handicap accessible restroom. The only restroom equipped with grab bars was located on the first floor of Plaintiff's housing unit. Plaintiff was assigned two fellow inmates as aides at different times, but he was often unable to contact an aide when he needed assistance, and both aides stopped helping him after a short time (Doc. 1, p. 3). Ultimately, Plaintiff was left to depend on the kindness of fellow inmates who might volunteer to help him. Plaintiff ended up soiling himself on several occasions when he was unable to get to the bathroom, enduring public humiliation as a result.
The limitations of his wheelchair also caused Plaintiff to be unable to negotiate the space in his housing unit, forcing him to crawl on the floor just to get to the bed. The lack of handicap-accessible facilities also shut Plaintiff out of amenities open to other prisoners, such as exercise/weight-training and game areas, the library, and the legal typing area. His access to fire escape and tornado shelter areas would necessitate traveling the entire length of the compound to pass through a locked gate to reach the wheelchair access point. Defendant Roal (the warden) refused to address these problems despite Plaintiff's requests (Doc. 1, p. 2).
Defendant Roloff (the prison chaplain) denied Plaintiff access to his Native American spiritual materials and prevented him from engaging in his religious ritual following the death of a family member (Doc. 1, p. 2). Although Bureau of Prisons ("BOP") policy allowed Plaintiff to possess a "Spiritual Bundle," prayer pipe, and traditional herbs, Defendant Roloff took these items away from Plaintiff. He complained to Defendant Roal about these violations, but she did nothing.
After Plaintiff raised complaints about the violations of his religious rights, Defendant Roloff retaliated against him by filing false incident reports against him in October and November 2011 (Doc. 1, p. 4). Plaintiff also experienced retaliation for complaining about the inadequacy of his wheelchair and access to prison facilities, and ADA non-compliance, although the complaint is not clear as to which of the Defendants (or some other unnamed party) was responsible for the loss of privileges, which included denial of telephone and email access. He states that these restrictions hampered his ability to pursue the appeal of his conviction (Doc. 1, p. 4).
Plaintiff further complains that the totality of the conditions at Marion, including black mold; poor sanitation, hygiene, food, and air quality; overcrowding; and lack of accommodations for disabled inmates, violated the Eighth Amendment (Doc. 1, p. 3).
Finally, Plaintiff seeks credit against his sentence for the four months and seven days he spent in home confinement, prior to being confined at Marion (Doc. 1, p. 1).
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable federal cause of action against Defendant Roal for deliberate indifference to medical needs, for the failure to provide him with accommodations for his disability (Count
1), against Defendants Roal and Roloff for denial of religious material and interference with his religious practice (Count 2), and against Defendants Roal and Roloff for retaliation (Count 3). However, the Federal Bureau of Prisons shall be dismissed as a Defendant in this action, because a Bivens claim may only be brought against an individual acting under the color of federal authority, not against the United States or one of its agencies. FDIC v. Meyer, 510 U.S. 471, 485-86 (1994).
Plaintiff's ADA claim (Count 4) must also be dismissed. The ADA, by definition, does not apply to the federal government or a federal agency such as the BOP and its federal prisons. While the ADA prohibits a "public entity" from excluding disabled individuals from its programs or otherwise discriminating against them, "public entity" is defined, in pertinent part, as "any State or local government; . . .any department, agency, special purpose district, or other instrumentality of a State or States or local government[.]" 42 U.S.C. § 12131(1)(A); (B). See also Penn. Dep't of Corr. v. Yeskey, 524 U.S. 206 (1998) (ADA applies to state prisons); Dyrek v. Garvey, 334 F.3d 590, 597 n. 3 (7th Cir. 2003) ("the ADA does not apply to federal agencies"); Cellular Phone Taskforce v. F.C.C., 217 F.3d 72, 73 (2nd Cir. 2000) (federal agency not liable under Title II of the ADA); Crowder v. True, No. 91-C-7427, 1993 WL 532455, *5 (N.D. Ill. Dec. 21, 1993), aff'd, 74 F.3d 812 (7th Cir. 1996) (affirming dismissal of ADA claim brought by federal prisoner because federal defendants are not subject to the ADA).
Plaintiff's statements regarding general inhumane conditions of confinement (Count 5) lack specificity as to his assertions of uncleanliness, poor air quality and food, and overcrowding, and thus fail to state a cognizable claim on those grounds. Plaintiff's description of the floors as "filthy" is very relevant to his claims in Count 1 above, because Plaintiff had no alternative but to crawl on those floors because of Defendant Roal's failure to provide him with a usable wheelchair or other accommodations for his medical condition. However, Plaintiff never explains how the other problems (black mold, food, sanitation, hygiene, air quality, and overcrowding) affected him. He merely includes those items in a "laundry list" of conditions without further detail or comment on their severity or whether he suffered any harm as a result of the prison environment (Doc. 1, p. 3). Plaintiff's cursory statements are not sufficient to indicate that he suffered any physical, psychological, or "probabilistic" harm from these alleged conditions. See Thomas v. Illinois, 2012 WL 4458347, *2 -3 (7th Cir. Sept. 27, 2012) (depending on severity, duration, nature of the risk, and susceptibility of the inmate, prison conditions may violate the Eighth Amendment if they caused either physical, psychological, or probabilistic harm); see also Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (conclusory legal statements are not sufficient to state a claim). Therefore, Count 5 shall be dismissed without prejudice, and Plaintiff shall be given leave to amend his complaint to include any facts which may exist to support a claim that he was subjected to unconstitutional conditions of confinement. If the amended complaint still fails to state a claim, or if Plaintiff does not submit an amended complaint, the dismissal of Count 5 shall become a dismissal with prejudice. The amended complaint shall be subject to review pursuant to § 1915A.
The alleged denial of Plaintiff's access to exercise facilities (Count 6) may violate the constitution. See Delaney v. DeTella, 256 F.3d 679, 683-84 (7th Cir. 2001) (collecting cases); Harris v. Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988) ("lack of exercise could rise to a constitutional violation where movement is denied and muscles are allowed to atrophy, and the health of the individual is threatened") (internal quotations omitted). The Court is thus unable to dismiss Plaintiff's exercise claim at this point in the litigation, and Count 6 against Defendant Roal shall receive further review.
As to Plaintiff's claim of denial of access to the courts (Count 7), the complaint does not contain sufficient information to state a cognizable claim. A prisoner must "spell out, in minimal detail, the connection between the alleged denial of access to legal materials and an inability to pursue a legitimate challenge to a conviction, sentence, or prison conditions." Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006). See also Pratt v. Tarr, 464 F.3d 730, 733 (7th Cir. 2006) (complaint must "place the defendants on notice of the plaintiff's claim so that they can begin to prepare their defense"). Plaintiff mentions his pending criminal appeal, but fails to show how Defendants' actions caused him any actual detriment in pursuing that case. See Howland v. Kilquist, 833 F.2d 639, 642-43 (7th Cir. 1987). Therefore, this claim shall be dismissed without prejudice, and Plaintiff shall be given leave to amend his complaint to include any facts which may exist ...