United States District Court, S.D. Illinois
Reona J. Daly United States Magistrate Judge
Joseph Ray Jordan, an inmate in the custody of the United
States Bureau of Prisons (“BOP”), alleges he was
attacked by several inmates while he was incarcerated in the
communications management unit (“CMU”) at the
United States Penitentiary in Marion, Illinois (“USP
Marion”). Plaintiff alleges he complained about the
dangerous conditions in the CMU to BOP officials, but was
told not to concern himself with prison operations. Plaintiff
is proceeding in this action on the following claim:
Count 1: Defendant United States, by and through the
negligence or deliberate indifference of the BOP Director and
Unknown Staff at USP Marion, is liable for Plaintiff's
2014 assault and resulting injuries under the FTCA.
submitted an Amended Complaint for review on March 13, 2019.
The Court construed the Amended Complaint as a motion for
leave to file a second amended complaint because Plaintiff
was not entitled to amend his pleading as a matter of course
under Federal Rule of Civil Procedure 15(a). Prior to
submitting his amended complaint for review, Plaintiff filed
numerous motions seeking reconsideration of the Court's
screening order. These motions were addressed by District
Judge Gilbert on May 14, 2019 (Doc. 56). Judge Gilbert
advised Plaintiff a decision would be rendered on his pending
motion for leave to file a second amended complaint if
Plaintiff did not file a new motion for leave to file along
with a newly-revised Second Amended Complaint by June 4,
2019. Plaintiff has not filed a new motion for leave, nor has
he submitted a revised Second Amended Complaint for review.
Accordingly, now before the Court is Plaintiff's motion
for leave to file a second amended complaint (Doc. 45).
Rule of Civil Procedure 15(a) provides that a party may amend
a pleading and that leave to amend should be freely given
"when justice so requires." The Seventh Circuit
maintains a liberal attitude toward the amendment of
pleadings "so that cases may be decided on the merits
and not on the basis of technicalities." Stern v.
U.S. Gypsum, Inc., 547 F.2d 1329, 1334 (7th Cir. 1977).
The Circuit recognizes that "the complaint merely serves
to put the defendant on notice and is to be freely amended or
constructively amended as the case develops, as long as
amendments do not unfairly surprise or prejudice the
defendant." Toth v. USX Corp., 883 F.2d 1297,
1298 (7th Cir. 1989). A court may also deny a party leave to
amend if there is undue delay, dilatory motive or futility.
Guise v. BMW Mortgage, LLC, 377 F.3d 795, 801 (7th
proposed second amended complaint, Plaintiff again sets forth
his allegations concerning the December 10, 2014 assault, and
alleges he suffered injuries that occurred “up to and
about” September 10, 2015. Although not entirely clear,
it appears Plaintiff is attempting to bring claims against
the BOP for instituting unconstitutional policies that led to
his assault and the provision of inadequate medical care to
treat his resulting injuries. However, Plaintiff only
specifically identifies the United States of America as a
defendant. Plaintiff indicates that the United States of
America is the defendant for purposes of this tort action,
but goes on to allege that employees of the BOP caused, and
exacerbated, the injuries alleged herein. Plaintiff asserts
that the BOP employees include those identified by job
description or title, and time periods and location, within
the claims and legal claims sections of this complaint.
Plaintiff notes that he seeks an order of the Court directing
the defendant to identify the employees by full names and
as Plaintiff is attempting to bring claims against employees
of the BOP or the BOP itself pursuant to Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971),
his attempts fail. As set forth in the Court's previous
Orders (Docs. 19 and 56), such claims are time-barred. The
assault giving rise to the proposed claims occurred on
December 10, 2014, and there is no particularized allegation
of any misconduct on behalf of prison officials after
approximately February 2015, when Plaintiff was released from
the special housing unit back to the CMU. Indeed, Plaintiff
merely alleges that certain individuals remained housed in
the CMU and he experienced weight loss, extreme anxiety,
panic attacks, sleepless nights, and mental anguish stemming
from the December 2014 incident. There is no action
attributed to any BOP staff members that caused or
contributed to any alleged injury. Because this lawsuit was
filed, at the latest, on August 22, 2017, any proposed
Bivens actions are time barred. Plaintiff's
proposed amendments to his complaint are therefore futile.
Plaintiff's motion for leave to file a second amended
complaint (Doc. 45) is DENIED.
IS SO ORDERED.
 Plaintiff captions his filing as an
“Amended Complaint, ” however, it is correctly
captioned as a “Second Amended Complaint” as
Plaintiff's Amended Complaint was ...