Michael Muir v. TSA ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 25, 2021*
Decided August 26, 2021
Before
DIANE S. SYKES, Chief Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-1312
MICHAEL GIBSON MUIR, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 20-cv-1280
TRANSPORTATION SECURITY Joe Billy McDade,
ADMINISTRATION, et al., Judge.
Defendants-Appellees.
ORDER
On two occasions, agents from the federal Transportation Security
Administration frisked Michael Muir when he passed through airport security after
body scanners flagged his bulging hernia as a potential security threat. Muir sued
various governmental and private actors for allegedly violating his constitutional rights,
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 21-1312 Page 2
asserting that the frisks were unlawful and caused him great pain. The district court
granted the defendants’ motions to dismiss, finding that subject-matter jurisdiction over
certain claims was lacking, that some claims were time-barred, and that what remained
of the complaint failed to state a claim. Because Muir’s argument on appeal does not
persuade us that he stated a valid federal claim, we affirm.
In August 2018, Muir went through security at Phoenix Sky Harbor International
Airport before boarding a flight to Peoria, Illinois. During the screening, a body scanner
registered Muir’s intestinal hernia, which protruded from his groin, as a foreign object.
A TSA agent pulled Muir aside for a frisk. Muir instructed the agent not to touch his
groin because, Muir said, it would result in severe pain and could endanger his life. The
TSA agent nonetheless proceeded with a full-body frisk. The same month, before
boarding his return flight, Muir went through security at the General Wayne A.
Downing Peoria International Airport. Muir’s hernia was flagged again, and, this time,
Muir offered to show the agent the hernia as an alternative to a frisk. The agent denied
Muir’s request and frisked his whole body.
In July 2020, Muir filed a complaint based on the incident in Peoria; he sued the
TSA; David Pekoske, the agency’s Administrator; and L3Harris Technologies, the
maker of the body scanner. He amended the complaint in September, bringing in
allegations about the Phoenix incident and adding the airline, Allegiant Air, and Chad
Wolf, then the Acting Secretary of Homeland Security, as defendants. The 21-count
amended complaint sought compensation of between $100 million and $250 million per
violation for pain and mental anguish, as well as punitive damages and injunctive and
declaratory relief. Muir asserted that the defendants violated the Federal Tort Claims
Act, 28 U.S.C. §§ 1346(b), 2671–80, and violated his constitutional rights—including his
right to be free from unreasonable searches and his “right to privacy,” see Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971). He also
alleged that Allegiant, L3Harris, and the TSA negligently failed to warn him of the
TSA’s screening process or that scanners might misidentify his hernia as a security
threat. Finally, Muir asserted that Pekoske, Wolf, and the TSA violated the
Rehabilitation Act, 29 U.S.C. § 794(a), by discriminating against him based on his
medical condition.
The defendants filed motions to dismiss under Rules 12(b)(6) and 12(c) of the
Federal Rules of Civil Procedure, and the district judge dismissed the complaint. He
first held that any negligence claims related to the Phoenix incident were time-barred
because Muir did not bring them within the two-year statute of limitations, and the
No. 21-1312 Page 3
claims did not relate back to the original complaint. He then concluded that none of the
parties could have acted negligently because Muir admitted that he kept his hernia
secret except from the single TSA agent in Peoria, and the defendants could not mitigate
or warn him of a risk they did not know about. Regardless, the judge further ruled, only
the United States could be a defendant under the FTCA.
As for the constitutional claims, the judge ruled that Allegiant and L3Harris were
not proper defendants because Muir did not explain how their actions could be
attributed to a government. Further, the judge determined, there was no federal subject-
matter jurisdiction over Muir’s Bivens and Rehabilitation Act claims against the federal
officials because, in effect, the claims challenged the validity of a final TSA order
prescribing airport threat-assessment procedures, and 49 U.S.C. § 46110 vests courts of
appeals with exclusive jurisdiction to hear such challenges.1 The judge dismissed
Muir’s amended complaint with prejudice after determining that Muir could not cure
the problems that led to dismissal.
Muir’s opening brief on appeal raises only one legal argument: that he set forth a
viable claim of conspiracy to deprive him of his constitutional rights under 42 U.S.C.
§ 1983. Muir therefore waives any appellate challenge to the judge’s reasons for
dismissal. See Tuduj v. Newbold, 958 F.3d 576, 579 (7th Cir. 2020). Moreover, he waived
the argument he now brings by not presenting it in the district court. See Poullard v.
McDonald, 829 F.3d 844, 855 (7th Cir. 2016). Although plaintiffs need not plead legal
theories, R3 Composites Corp. v. G&S Sales Corp., 960 F.3d 935, 942 (7th Cir. 2020), they
must alert a judge to claims that were missed before the judge acts. Wheeler v.
Hronopoulos, 891 F.3d 1072, 1073 (7th Cir. 2018). And in opposing the motions to
dismiss, Muir never argued that he stated a claim under § 1983 in his amended
complaint.
In any case, Muir’s argument that he has a claim under 42 U.S.C. § 1983 fails
because none of the defendants can be liable under that statute. Section 1983 requires
that the defendants acted under the color of state law; it does not extend to private
actors or those acting under color of federal law. Case v. Milewski, 327 F.3d 564, 566–67
1 We do not address whether it is correct that a district court could not hear
Muir’s claims targeting airport screening procedures because Muir accepts that decision
on appeal. To the extent that Muir asks us to treat his appellate brief as an original
petition for review of the TSA’s screening process under § 46110, we cannot. Our review
here is limited to the decisions noticed for appeal. FED. R. APP. P. 3(c)(1)(B).
No. 21-1312 Page 4
(7th Cir. 2003). If the plaintiff alleges a conspiracy to violate his civil rights, he still must
show that the named private parties conspired with state actors. Lewis v. Mills, 677 F.3d
324, 333 (7th Cir. 2012) (Section 1983 conspiracy must involve, among other things, an
understanding between a “state official” and a private person and “joint activity”);
see Dix v. Edelman Fin. Servs., LLC, 978 F.3d 507, 518 (7th Cir. 2020). Here, the defendants
are all federal agents or private actors, so § 1983 is not in play.
Perhaps anticipating that response, Muir contends that he alleged in the
operative complaint that Peoria County, Illinois, was a member of the conspiracy. But
he neither named the county in the caption nor, in the body of the complaint, did he
allege any personal involvement by county officials in the alleged misconduct at the
airport. See Donald v. Cook Cnty. Sheriff’s Dep’t, 95 F.3d 548, 559–60 (7th Cir. 1996)
(referring to defendants in body of complaint but not caption sufficed). Muir’s brief in
opposition to the defendants’ motions to dismiss simply said that he could not leave the
screening area without risk of arrest by “local law enforcement.” In his reply brief on
appeal, Muir states that Peoria County sheriff’s deputies stood by as his rights were
being violated. But nowhere does Muir suggest that they knew of the alleged
infringement (or his hernia). See Gill v. City of Milwaukee, 850 F.3d 335, 342 (7th Cir.
2017). For these reasons and more, belatedly invoking the county does nothing for Muir.
Finally, for the first time in his reply brief, Muir raises arguments about the
judge’s reasons for dismissing his other claims. But arguments raised for the first time
in a reply brief are waived. Wonsey v. City of Chicago, 940 F.3d 394, 398 (7th Cir. 2019).
AFFIRMED