Vick v. USP Marion, 3:22-cv-00223

Plaintiff Delanio Maurice Vick, a federal inmate originally housed at USP Marion, alleges beginning October 20, 2021 he was sexually harassed, verbally threatened, physically assaulted, discriminated against, denied media/mail/phone, given inadequate food, and told to kill himself by named staff (STS Schneider, Huckleberry, C/O Masters, C/O Smillie). His pre-sentence report was allegedly read to other inmates.
Vick sued under Bivens and the Federal Tort Claims Act (FTCA), seeking injunctive relief; the case was subject to preliminary review under 28 U.S.C. § 1915A.
The court dismissed FTCA claims without prejudice because the United States was not named as defendant; it dismissed the Federal Bureau of Prisons and USP Marion with prejudice as improper defendants in a Bivens action.
The court concluded Vick’s Eighth Amendment abuse/conditions claim arises in a new Bivens context and declined to extend Bivens because an alternative remedial scheme (BOP administrative remedies) is available; the Eighth Amendment damages claim was dismissed with prejudice.
Vick’s request for injunctive relief was dismissed as moot because he was transferred to USP Canaan and did not show likelihood of retransferral to USP Marion.
The court granted Vick leave to file a First Amended Complaint by June 21, 2023 (failure to amend could result in dismissal with prejudice and a strike under 28 U.S.C. § 1915(g)).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper defendant for FTCA claim	Vick brought FTCA claims against BOP/USP Marion and individual staff	FTCA suits must name the United States as defendant	FTCA claims dismissed without prejudice because U.S. was not named
Capacity to sue BOP/USP Marion under Bivens	Vick named BOP and USP Marion as defendants	Bivens permits suit only against individual federal officers; entities are shielded	BOP and USP Marion dismissed with prejudice as improper Bivens defendants
Availability of a Bivens remedy for Eighth Amendment SHU abuse	Vick alleges cruel and unusual punishment by staff and seeks damages under Bivens	Courts should not extend Bivens where context is new and special factors counsel against it; BOP administrative remedies exist	Court found new Bivens context and declined to extend Bivens due to special factors (administrative remedy availability); Eighth Amendment damages claim dismissed with prejudice
Mootness of injunctive relief after transfer	Vick seeks injunctive relief for treatment at USP Marion	Transfer to USP Canaan moots requests against Marion officials absent likelihood of return	Injunctive relief dismissed as moot because Vick was transferred and did not show likely retransfer

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (recognized implied damages remedy against federal officers for Fourth Amendment violations)
Ziglar v. Abbasi, 582 U.S. 120 (2017) (limits on extending Bivens; two-step inquiry and special factors analysis)
Egbert v. Boule, 142 S. Ct. 1793 (2022) (declining to extend Bivens; alternative remedies bar extension)
Hernandez v. Mesa, 140 S. Ct. 735 (2020) (describes new-context inquiry and special-factors framework)
Davis v. Passman, 442 U.S. 228 (1979) (one of the narrow Bivens extensions recognized by the Court)
Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment medical-care Bivens action recognized)
FDIC v. Meyer, 510 U.S. 471 (1994) (federal agencies are immune from suit in Bivens-style actions)
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard governing plausibility)
Higgason v. Farley, 83 F.3d 807 (7th Cir. 1996) (prisoner’s request for injunctive relief against former facility is moot after transfer absent likely return)
Pearson v. Welborn, 471 F.3d 732 (7th Cir. 2006) (transfer undermines prospective injunctive/declaratory relief claims)
Olson v. Brown, 594 F.3d 577 (7th Cir. 2010) (case becomes moot when issues are no longer live or parties lack cognizable interest)
Jackson v. Kotter, 541 F.3d 688 (7th Cir. 2008) (FTCA requires United States as defendant)