10-2147 Robinson v. Sherrod

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Torts
Federal prisoners

A federal prisoner cannot sue to obtain an order that prison medical staff treat him without first exhausting administrative remedies.

“Carlson v. Green, 446 U.S. 14 (1980), however, which held that the Federal Tort Claims Act is not the exclusive remedy for constitutional torts by federal officers, has never been overruled, and so remains available to Robinson—or rather, remained so; he has failed to exhaust the available administrative remedies. 28 C.F.R. §§ 542.10-.19; U.S. Dept. of Justice, Federal Bureau of Prisons, Program Statement 1330.16—Administrative Remedy Program (Dec. 31, 2007), www.bop.gov/policy/ progstat/1330_016.pdf. That failure made a Bivens suit premature. 42 U.S.C. § 1997e(a); Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004); Yousef v. Reno, 254 F.3d 1214, 1221 (10th Cir. 2001); Nyhuis v. Reno, 204 F.3d 65, 66, 78 (3d Cir. 2000). And it would have barred any alternative form of relief as well—whether under section 2241 of the Judicial Code, the Federal Tort Claims Act, or the Administrative Procedure Act. The district court explained all this yet Robinson still appealed, and his obduracy marks the appeal as frivolous and gives him his third strike under the Prison Litigation Reform Act. 28 U.S.C. § 1915(g); Kalinowski v. Bond, 358 F.3d 978, 979 (7th Cir. 2004). (He incurred one when the district court dismissed his complaint for failure to state a claim in Robinson v. Walter, No. 3:98-cv-03208 (C.D. Ill. June 24, 1999), and a second when we affirmed that dismissal. 21 F. App’x 505 (7th Cir. 2001).)”

Affirmed.

10-2147 Robinson v. Sherrod

Appeal from the United States District Court for the Southern District of Illinois, Reagan, J., Posner, J.

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