United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT, DISTRICT JUDGE.
matter comes before the Court on the Report and
Recommendation (“Report”) (Doc. 66) of Magistrate
Judge Reona J. Daly recommending that the Court grant the
motion to dismiss or, in the alternative, for summary
judgment filed by the defendant United States of America
(Doc. 47); grant the motion to dismiss filed by defendants R.
Morris, Lt. Smith, and T.G. Werlich (Doc. 50); and,
alternatively, grant the motion for summary judgment filed by
defendant Lt. Smith (Doc. 49). Plaintiff Tony Terrell
Robinson has objected to the Report (Doc. 67), and the
defendants have responded to that objection (Doc. 68). The
Court also considers Robinson's motion for leave to file
an amended pleading (Doc. 69).
Report Review Standard
Court may accept, reject or modify, in whole or in part, the
findings or recommendations of the magistrate judge in a
report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court
must review de novo the portions of the report to
which objections are made. Id. “If no
objection or only partial objection is made, the district
court judge reviews those unobjected portions for clear
error.” Johnson v. Zema Sys. Corp., 170 F.3d
734, 739 (7th Cir. 1999).
matter arose after Robinson, at all relevant times an inmate
at the Federal Correctional Institute at Greenville, Illinois
(“FCI-Greenville”), complained to Warden Werlich,
and other prison staff about a new library policy and was
then terminated from his prison job as an orderly in the law
library. The new policy provided that inmates who wished to
visit the law library after 4:00 p.m. would be required to
stay there during the evening meal so they would miss the
meal. In his discussions with prison staff about
the new policy, Robinson speculated that there was enough
prison staff to allow inmates to visit the library
and eat their evening meal. Shortly thereafter,
Morris terminated Robinson from his orderly position, telling
him it was because he posed a security threat by paying too
much attention to the comings and goings of staff. Later,
after Robinson inquired further about his termination, Lt.
Smith threatened to ship him to a place he would not like if
he continued to ask about the safety and security of
FCI-Greenville and to file so many grievances.
First Amended Complaint, Robinson brings a claim under
Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971), against Morris for terminating him in retaliation for
his complaints in violation of the First Amendment (Count 1);
a claim against the United States for retaliatory discharge
under the Federal Tort Claims Act (“FTCA”) (Count
2); a Bivens claim against Smith for threatening to
transfer him in retaliation for his complaints in violation
of the First Amendment (Count 3); and a Bivens claim
against Morris and Werlich for the new library policy in
violation of the Eighth Amendment (Count 4).
Report, Magistrate Judge Daly recommends that the Court not
recognize the Bivens actions in Counts 1, 3 and 4
and that the Court find Robinson failed to exhaust his
administrative remedies as to Counts 2 and 3. Robinson
objects to the entirety of the Report.
de novo review of the matter, the Court addresses
Robinson's objections along with the portion of the
Report to which each objection pertains.
Incomplete Findings of Fact
faults Magistrate Judge Daly for not fully describing the
facts, the bases for Robinson's claims, the adverse
actions taken against him, and his efforts to exhaust his
administrative remedies. The only specific example to which
he points is her failure to mention that Robinson's
original complaint did not plead an FTCA cause of action.
Court has reviewed the evidence in the file and the facts set
forth in the Report and finds that the Report recounts
accurately all the facts necessary and relevant to the
questions before the Court at the moment. As for Magistrate
Judge Daly's omission of the “fact” that
there was no FTCA claim pled in Robinson's original
complaint, she was right to do so because this Court has
already found-twice-that it contained such a claim, and has
already dismissed the claim as stated in Robinson's
original complaint for failure to exhaust administrative
remedies (Doc. 1 at 11; Doc. 8 at 7-9). The Report accurately
states the procedural history of this case.