United States District Court, S.D. Indiana, Terre Haute Division
NATHAN E. JACOBS, Plaintiff,
S. JULIAN, Assistant Warden, MR. BONHAM, Chaplain, D. SWEENEY, Unit Manager, Defendants.
William T. Lawrence, Judge
Discussing Complaint, Dismissing Insufficient Claims, and
Directing Further Proceedings
Nathan Jacobs, an inmate at the United States Penitentiary in
Terre Haute, Indiana (“USP-TH”), alleges in his
complaint that the defendants violated his rights because
they failed to allow him to participate in certain programs
within the Bureau of Prisons. Mr. Jacobs has named as
defendants: 1) S. Julian, Assistant Warden, USP-TH; 2) Mr.
Bonham, Chaplain; and, 3) D. Sweeney, Unit Manager. He seeks
the arrest of these individuals as damages.
complaint is subject to the screening requirement of 28
U.S.C. § 1915A(b). This statute directs that the Court
dismiss a complaint or any claim within a complaint which
“(1) is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or (2) seeks monetary
relief from a defendant who is immune from such
relief.” Alvarado v. Litscher, 267 F.3d 648,
650 (7th Cir. 2001).
satisfy the notice-pleading standard of Rule 8 of the
Federal Rules of Civil Procedure, a complaint must
provide a “short and plain statement of the claim
showing that the pleader is entitled to relief,” which
is sufficient to provide the defendant with “fair
notice” of the claim and its basis. Erickson v.
Pardus, 551 U.S. 89, 93 (2007)(citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955,
1964 (2007) and quoting Fed. R. Civ. P. 8(a)(2)). The
complaint “must contain sufficient factual matter,
accepted as true, to state a claim for relief that is
plausible on its face. . . . A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)(internal quotations
omitted). Pro se complaints are construed liberally
and “held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson, 551
U.S. at 94 (internal quotation omitted); see also
Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir.
from misconduct by federal agents may be obtained either by a
suit against the agent for a constitutional tort under the
theory set forth in Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971), or by a suit against the
United States under the Federal Tort Claims Act [FTCA] . . .
which permits claims based upon misconduct which is tortious
under state law, 28 U.S.C. § § 1346(6),
2680.” Sisk v. United States, 756 F.2d 497,
500 n.4 (7th Cir. 1985).
complaint can be understood to allege a Bivens claim
against the individual defendants. Bivens
“authorizes the filing of constitutional tort suits
against federal officers in much the same way that 42 U.S.C.
§ 1983 authorizes such suits against state officers. . .
.” King v. Federal Bureau of Prisons, 415 F.3d
634, 636 (7th Cir. 2005); see also Abella v. Rubino,
63 F.3d 1063, 1065 (11th Cir. 1995)(noting that “the
effect of Bivens was to create a remedy against
federal officers acting under color of federal law that was
analogous to the Section 1983 action against state
the plaintiff alleges the defendants’ refusal to allow
him to participate in particular Bureau of Prison program
violated his constitutional rights pursuant to the First,
Fourth, Fifth, Ninth, and Fourteenth Amendments. Based on
these allegations, the only possible violation could be under
the Due Process Clause of the Fourteenth Amendment.
nothing in the conduct attributed to the defendants based on
the allegations set forth in the complaint violated any of
the plaintiff’s federally secured rights. He had no due
process or other right to participation in a prison program
he describes in the complaint. See, e.g.,
Higgason v. Farley, 83 F.3d 807, 809-810 (7th Cir.
1996) (the denial of access to educational programs does not
infringe on a protected liberty interest, even if denied the
opportunity to earn good time credits); Garza v.
Miller, 688 F.2d 480, 485-86 (7th Cir. 1982) (there is
no constitutional mandate that prisons must provide
rehabilitative programs). As the Supreme Court explained,
“[a] pleading that offers ‘labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action will not do.’ Nor does a
complaint suffice if it tenders ‘naked
assertion[s]’ devoid of 'further factual
enhancement.’” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009)(quoting Twombly, 550 U.S. at
555 & 557).
the fact that the plaintiff seeks the arrest of the
defendants as a remedy for the alleged constitutional
violations implies the initiation of criminal proceedings.
The plaintiff may not use this civil action to commence
criminal charges against the defendants. Only the United
States may commence federal criminal charges and a private
individual has no right to compel such a prosecution. See
Leeke v. Timmerman, 454 U.S. 83 (1981) (holding that
inmates lacked standing to force issuance of arrest warrants
of correctional officers for beatings); Ragsdale v.
Turnock, 941 F.2d 501, 509 (7th Cir. 1991) (private
persons generally have no right to enforce criminal statutes
or to sue under them unless the statute also creates a
private right of action. (Posner, J., concurring), cert
denied, 502 U.S. 1035 (1992).
plaintiff has through May 15, 2017, in which to show cause
why Judgment consistent with this Entry should not issue.
See Luevano v. Wal-Mart Stores, Inc.,722 F.3d 1014,
1022 (7th Cir. 2013) (“Without at least an opportunity
to amend or to respond to an order to show cause, an IFP
applicant’s case could be tossed out of court without
giving the applicant any ...