Janis, Gust M. v. United States , 162 F. App'x 642 ( 2006 )


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  •                             UNPUBLISHED ORDER
    Not to be cited per Circuit Rule 53
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted January 18, 2006*
    Decided January 20, 2006
    Before
    Hon. MICHAEL S. KANNE, Circuit Judge
    Hon. DIANE P. WOOD, Circuit Judge
    Hon. TERENCE T. EVANS, Circuit Judge
    No. 05-1198
    Appeal from the United States
    GUST MARION JANIS,                           District Court for the Southern
    Plaintiff-Appellant,                     District of Indiana, Indianapolis
    Division
    v.
    No. 1:04-cv-2024-JDT-TAB
    UNITED STATES OF AMERICA,
    Defendant-Appellee.                      John Daniel Tinder,
    Judge.
    ORDER
    Federal inmate Gust Marion Janis brought this action against the United States
    (the only named defendant) seeking broadly to enjoin anyone employed by the Bureau
    of Prisons from interfering with his ability to pursue administrative and judicial
    remedies, whether state or federal. The district court characterized the suit as one
    claiming retaliation and dismissed it without prejudice on initial screening, see 28
    U.S.C. § 1915A. We affirm.
    *
    After an examination of the briefs and the record, we have concluded that
    oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
    record. See Fed. R. App. P. 34(a)(2).
    No. 05-1198                                                                       Page 2
    The allegations underlying Janis’s complaint are quite narrow relative to the
    relief he seeks. Janis is serving a life sentence that was imposed in 1992. See United
    States v. Janis, 
    820 F.Supp. 512
     (S.D.Cal. 1992), aff’d, 
    46 F.3d 1147
     (9th Cir. 1995)
    (unpublished opinion). In September 2004, he was transferred from a federal prison
    in California to the United States Penitentiary at Terre Haute, Indiana. Shortly after
    arriving there, Janis mailed an administrative claim seeking $10 million for personal
    injury and property damage to the BOP’s North Central Regional Office in Kansas
    City, Kansas. This was not a prison grievance, but instead a standard-form “Claim for
    Damages, Injury, or Death” that must be submitted to the BOP before anyone injured
    by a BOP employee—inmate or otherwise—may sue the United States under the
    Federal Tort Claims Act (“FTCA”), 
    28 U.S.C. § 267-80
    ; see 
    28 C.F.R. § 14.2
    . Janis
    alleged in his administrative claim that he was improperly transferred to Terre Haute,
    that the medical facilities there are inadequate for his health conditions, that he was
    refused medical treatment after the transfer, and that he was denied access to legal
    materials. Of particular significance here, Janis also alleged that J. Ramer, a Unit
    Manager at Terre Haute, had threatened retaliation if he pursued any legal action
    against prison employees. (Janis had been at Terre Haute before and was known to
    Ramer.) After receiving Janis’s administrative claim, BOP employees in Kansas City
    concluded that the claim should have been submitted instead to the Western Regional
    Office, where the transfer to Terre Haute was initiated. They forwarded the claim to
    that office and sent a copy to Terre Haute. When Ramer became aware of the
    administrative claim, he immediately lodged a disciplinary case charging Janis with
    falsely accusing him of making a threat. A disciplinary committee found Janis guilty
    and revoked his telephone privileges for thirty days. Janis, of course, insists that what
    he said about Ramer in his administrative claim is true, and that Ramer initiated the
    disciplinary case to make good on his threat.
    Janis does not want damages. The goal of his suit is an injunction “to stop prison
    officials and employees from hindering . . . plaintiff from redressing his
    grievances . . . and punishing him” based on their content. Those whom Janis seeks to
    constrain through his proposed injunction include the Attorney General of the United
    States and every employee of the BOP. Janis characterized his complaint as arising
    under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 
    403 U.S. 388
    (1971), and the regulations governing grievances submitted by BOP inmates. In
    dismissing Janis’s suit, the district court reasoned that it could not be maintained as
    a Bivens action because under that decision the United States—the only defendant
    Janis named—is not an appropriate defendant, and because Janis admittedly had
    failed to exhaust his administrative remedies as required by 28 U.S.C. § 1997e(a). The
    court added, moreover, that if Janis intended by suing the United States to pursue an
    action under the FTCA rather than Bivens, then the suit must be dismissed because
    injunctive relief is unavailable as a remedy under the FTCA, and because the statute
    includes its own exhaustion requirement that Janis had not yet completed.
    No. 05-1198                                                                       Page 3
    We agree with the district court that the United States is not a proper defendant
    under Bivens. “[T]he point of Bivens was to establish an action against the employee
    to avoid the sovereign immunity that would block an action against the United States.”
    Sterling v. United States, 
    85 F.3d 1225
    , 1228-29 (7th Cir. 1996); see F.D.I.C. v. Meyer,
    
    510 U.S. 471
    , 484-86 (1994); Okoro v. Callaghan, 
    324 F.3d 488
    , 490 (7th Cir. 2003).
    Janis did not name any prison employees as defendants, and the district court could
    not properly have substituted as defendants the individuals named in the body of the
    complaint. Myles v. United States, 
    416 F.3d 551
    -52 (7th Cir. 2005).
    The district court was also correct that Janis failed to exhaust his
    administrative remedies as he must before bringing a Bivens claim. Dismissing a
    complaint for noncompliance with § 1997e(a) is inappropriate at the screening stage
    unless the failure to exhaust is obvious from the face of the complaint. United States
    v. Lewis, 
    411 F.3d 838
    , 842 (7th Cir. 2005); Walker v. Thompson, 
    288 F.3d 1005
    , 1009
    (7th Cir. 2002). Here, the failure to exhaust was obvious because Janis expressly
    admitted this shortcoming. Janis, by way of excuse, predicted from past experiences
    that he would suffer retaliation if he attempted to use the grievance procedures at
    Terre Haute. But if BOP inmates believe that they would be endangered by filing a
    grievance in the normal course with officials at their particular facility, see 
    28 C.F.R. §§ 542.13
    , 542.14(c)(4), they can submit their grievances directly to a Regional Director
    of the BOP, see 
    id.
     § 542.14(d)(1) (“If the inmate reasonably believes the issue is
    sensitive and the inmate’s safety or well-being would be placed in danger if the Request
    became known at the institution, the inmate may submit the Request directly to the
    appropriate Regional Director.”). Janis did not explain why he never filed a grievance
    with the Regional Director, and while he claims that he had been denied the
    appropriate forms during his previous stay at Terre Haute, he does not contend that
    he attempted to get the proper forms this time.
    In this court Janis does not dispute the district court’s conclusion that he was
    trying to obtain relief under Bivens without first exhausting the grievance process. He
    appears to suggest, however, that under the All Writs Act, 
    28 U.S.C. § 1651
    , the
    district court could have enjoined interference with his grievances to ensure that
    Janis’s ability to litigate an unexhausted Bivens claim would not be thwarted. See FTC
    v. Dean Foods Co., 
    384 U.S. 597
    , 604 (1966) (recognizing a limited judicial power to
    issue injunctions in aid of jurisdiction that has not yet been perfected); In re Campbell,
    
    264 F.3d 730
    , 731 (7th Cir. 2001). Indeed, in a case in which prisoners intended to
    challenge a prison’s grooming policy that would go into effect before they could exhaust
    their administrative remedies, one of our sister circuit courts has allowed for the
    possibility— without deciding the question—that a district court may have “inherent
    power to protect the prisoners while they exhaust prison grievance procedures.”
    Jackson v. Dist. of Columbia, 
    254 F.3d 262
    , 268 (D.C. Cir. 2001).
    No. 05-1198                                                                      Page 4
    It is not necessary to answer this question here, however. Janis’s complaint
    cannot fairly be construed as a request for such extraordinary relief, especially when
    he did not contradict the district court’s characterization of his suit until now. A
    plaintiff must clearly articulate in the complaint the remedy he is seeking, Vicom, Inc.
    v. Harbridge Merch. Serv., Inc., 
    20 F.3d 771
    , 775 (7th Cir. 1994), and though Janis
    refers us to Dean Foods and § 1651, he did not suggest either authority to the district
    court. More importantly, § 1997e(a) requires only that prisoners exhaust “available”
    administrative remedies before bringing a suit about prison conditions. 42 U.S.C.
    § 1997e(a). We have held that when prison officials interfere with a prisoner’s ability
    to exhaust administrative remedies, those remedies are rendered “unavailable.”
    Brengettcy v. Horton, 
    423 F.3d 674
    , 682 (7th Cir. 2005); Lewis v. Washington, 
    300 F.3d 829
    , 833 (7th Cir. 2002). Thus we have difficulty envisioning a situation where a
    district court would have need to stop interference with the grievance process because,
    where interference occurs, the inmate may simply proceed with his lawsuit; the
    affirmative defense of failure to exhaust administrative remedies will be lost for
    defendants whose conduct made those remedies unavailable. Finally, as we have said,
    this is not a case where Janis was at the mercy of BOP employees at his institution;
    all he needed to do was submit a grievance to a Regional Director to avoid the prospect
    of retaliation.
    Accordingly, we AFFIRM the district court’s dismissal without prejudice of Janis’s
    complaint.