United States District Court, C.D. Illinois
MERIT REVIEW ORDER
MICHAEL M. MIHM UNITED STATES DISTRICT JUDGE.
a federal prisoner confined at the Federal Correctional
Institution in Pekin, Illinois (“FCI-Pekin”),
files a complaint after payment of the filing fee. Plaintiff
asserts actions under Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971), and the
Administrative Procedures Act (“APA”), 5 U.S.C.
§§ 554-555 and §§ 701-706. The case is
before the Court for a merit review pursuant to 28 U.S.C.
§ 1915A. In reviewing the Complaint, the Court accepts
the factual allegations as true, liberally construing them in
Plaintiff's favor. Turley v. Rednour, 729 F.3d
645, 649-51 (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 and internal quotation
marks omitted). While the pleading standard does not require
“detailed factual allegations”, it requires
“more than an unadorned,
Wilson v. Ryker, 451 Fed.Appx. 588, 589 (7th Cir.
2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
claims to suffer from more than 20 chronic health conditions
including Type II Diabetes, rheumatoid arthritis, nerve pain,
joint pain, carpal tunnel and bilateral plantar fasciitis.
Plaintiff claims that for 18 years he has had permits for
medical shoes and orthotics due to his diabetes and
rheumatoid arthritis. On November 28, 2012, he was
interviewed by Defendants Rios, Moats and Johnson after he
requested the renewal of his permit for medical shoes.
FCI-Pekin Medical Director, Dr. Moats indicated that he would
review Plaintiff's medical file and render a decision. He
did so at a later date, revoking Plaintiff's permits.
was thereafter issued institutional boots which he was unable
to tie due to the chronic conditions in his hands. He claims
that without the medical shoes his diabetic neuropathy
worsened. Plaintiff filed an Administrative Remedy, grieving
the matter. Plaintiff's administrative remedy was denied
at the institutional level and he appealed to the Central
Bureau of Prisons (“BOP”) Office in Washington,
D.C. During the pendency of the appeal, Plaintiff's
permits were reinstated and the appeal was dismissed as moot.
claims, however, that his permits expired after one year and
were not renewed. On September 23, 2016, he was examined by
Dr. Lee Ho, not a defendant, who agreed that he should have
medical shoes. It is unclear whether Plaintiff was, in fact,
provided the shoes after this examination. Plaintiff requests
compensatory and punitive damages; as well as injunctive
relief, that all of his medical permits be restored and that
he be provided new medical shoes every six months.
Bivens claim is brought against Defendants Warden
Rios, Dr. Moats and Health Administrator Johnson in their
individual capacities, alleging that they were deliberately
indifferent to his serious medical needs in violation of the
Eighth Amendment. It is well established that deliberate
indifference to a serious medical need is actionable as an
Eighth Amendment violation. Hayes v. Snyder, 546
F.3d 516, 522 (7th Cir. 2008). A deliberate indifference
claim must establish “(1) an objectively serious
medical condition; and (2) an official's deliberate
indifference to that condition.” Arnett v.
Webster, 658 F.3d 742, 750 (7th Cir. 2011). Deliberate
indifference is proven by demonstrating that a prison
official knows of a substantial risk of harm to an inmate and
“either acts or fails to act in disregard of that
risk.” Id. at 751. Deliberate indifference may
be shown where prison officials delay the treatment of an
objectively serious medical need. Langston v.
Peters, 100 F.3d 1235, 1240 (7th Cir. 1996) (internal
has alleged enough at this juncture for the Eighth Amendment
claim to proceed against Defendants Moats. He has failed to
allege, however, that Defendants Rios or Johnson participated
in the decision to deny the permits or that they had the
authority to overrule Defendant Moats's decision. See
Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009),
“[p]ublic officials do not have a free-floating
obligation to put things to rights, disregarding rules (such
as time limits) along the way. Bureaucracies divide tasks; no
prisoner is entitled to insist that one employee do
another's job.…the Superintendent of Prisons and
the Warden of each prison, is entitled to relegate to the
prison's medical staff the provision of good medical
also alleges that Defendants' actions violated the APA.
It is unclear whether he claims that the APA violation arose
from the initial decision not to renew the permits or the
subsequent denial of his related grievances. Either way,
Plaintiff claims that Defendants' decisions were
arbitrary, capricious, an abuse of discretion and not
supported by substantial evidence.
is codified at 5 U.S.C. § 554 et seq., and at 5
U.S.C. § 701 et seq. It allows claims for
injunctive relief but not money damages, for injury caused by
agency action. Czerkies v. U.S. Dep't of Labor,
73 F.3d 1435, 1438 (7th Cir.1996) (§ 702 allows judicial
review of agency actions, waiving the federal
government's sovereign immunity). Here, however,
Plaintiff asserts his action against the individual FCI-Pekin
Defendants and does not claim that their denial of his
grievances was a final agency action. Robbins v.
Wilkie, 300 F.3d 1208, 1212 (10th Cir. 2002) (“the
APA contains no remedy whatsoever for constitutional
violations committed by individual federal employees
unrelated to final agency action.”) See also Thelen
v. Cross, 656 Fed.Appx. 778, 780 (7th Cir. 2016),
reh'g denied (Aug. 30, 2016) (the APA does not
authorize action against a warden as a representative of an
under its terms the APA does not apply if another statute
precludes judicial review. 5 U.S.C. § 701(2). 18 U.S.C.
§ 3621 et seq., which enumerates the BOP's delegated
authority over federal prisoners has been determined to
exclude APA judicial review of a BOP “determination,
decision, or order.” 18 U.S.C. § 3625. See
Reeb v. Thomas, 636 F.3d 1224, 1226 (9th Cir. 2011) (the
plain language of § 3625 prohibits the application of
APA judicial review to BOP powers codified at §§
3621-3624). As a result, § 3621 (g)(1), which
specifically grants BOP authority to make medical and care
decisions as to prisoners, is precluding from APA judicial
review under § 3625.
Court construes Plaintiff as asserting an APA claim for the
denial of his grievances, this is also is precluded under
§ 3625. See Scates v. Doe, No.15-2904, 2016 WL
8672963, at *7 (D.S.C. May 6, 2016), (‘[t]he
administrative remedy [grievance] program is part of
postsentence administration and, therefore, may not be
reviewed under the APA.) report and recommendation
adopted, No. 15-2904, 2016 WL 3769449 (D.S.C. July 13,
2016); Shepard v. Rangel, No.: 12-01108, 2014 WL
7366662, at *14 (D. Colo. Dec. 24, 2014) (there is no APA
jurisdiction over an administrative remedy claim).
Accordingly, Plaintiff's APA claim is dismissed with
prejudice, as precluded by statute.
IS THEREFORE ORDERED:
case shall proceed on Plaintiff's Bivens claim
of deliberate indifference as to Defendant Moats.
Plaintiff's APA claim is DISMISSED with prejudice.
Defendants Rios and Johnson are DISMISSED. Plaintiff will
have 30 days to file an amended complaint at to Defendants
Rios and Johnson, should he wish. Any claims not identified
will not be included in the case, except in the Court's
discretion upon motion by a party for good cause shown, or by
leave of court pursuant to Federal Rule of Civil Procedure
Court will file a separate order AMENDING its text order of
September 27, 2017, in which it indicated that the clerk
would issue waivers of service after merit review. As
Plaintiff has paid the filing fee and is not proceeding
in forma pauperis, it will be his responsibility
under CDIL-LR 16.3(D) to arrange service on Defendant. The
clerk is directed to send Plaintiff a copy of Fed.R.Civ.P. 4
and waivers of service for Defendant. If Defendant does not
return a signed waiver of service, Plaintiff will be
responsible for arranging personal ...