United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted August 30, 2018*

Decided August 30, 2018 

Before 

DIANE S. SYKES, Circuit Judge 

DAVID F. HAMILTON, Circuit Judge 

MICHAEL Y. SCUDDER, Circuit Judge

No. 17-3144 

CLARENCE G. GOREE, 

Plaintiff-Appellant, 

v. 

J. SERIO, et al., 

 Defendants-Appellees.

 Appeal from the United States District 

Court for the Southern District of Illinois. 

No. 17-cv-0685-JPG 

J. Phil Gilbert, 

Judge. 

 

O R D E R 

Clarence Goree, formerly an inmate at the Greenville Federal Correctional 

Institution in Illinois, sued prison staff for constitutional violations under Bivens v. Six 

Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and for 

negligence under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680. His core 

claim is that the defendants unlawfully encumbered his trust fund account. The district 

 

*

 The defendants were not served with process in the district court and are not 

participating in this appeal. We have agreed to decide this 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. See FED. R. APP. P. 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 17-3144 Page 2 

judge dismissed Goree’s claims with prejudice at screening, see 28 U.S.C. § 1915A, 

concluding that they were frivolous, barred by the statute of limitations, or not covered 

by the waiver of sovereign immunity under the Federal Tort Claims Act. Because Goree 

did not bring any cognizable, nonfrivolous claim, we affirm the judgment. 

We review de novo the dismissal under § 1915A and accept as true the facts 

alleged in Goree’s complaint. Smith v. Knox Cty. Jail, 666 F.3d 1037, 1039 (7th Cir. 2012). 

Documents attached to (and therefore incorporated into) the complaint, see FED.

R. CIV. P. 10(c), show that the warden, acting pursuant to a prison policy, froze $25,000 

of Goree’s funds because the FBI requested the encumbrance while investigating a link 

between Goree’s money and possible criminal activity. Based on this interdiction, Goree 

asserts three Bivens claims: the warden’s discretion to encumber his funds violates his 

due-process rights and his right to equal protection (presumably under a class-of-one 

theory); Goree’s administrative proceeding to recover damages for the encumbrance 

violated his due-process rights because the grievance administrator cited the wrong 

statute when denying his claim; and a correctional officer violated his due-process 

rights by filing a false report alleging that he was insolent during the investigation. He 

also claims under the Federal Tort Claims Act that the warden negligently froze his 

account. 

Goree’s Bivens claims are premised on due-process violations that the Supreme 

Court does not recognize as cognizable under Bivens, and it would be improper to 

recognize a new theory of relief in this case. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1857–58 

(2017). Where Congress has established an alternative remedial structure to protect a 

constitutional right, the Supreme Court has strongly cautioned that the courts should 

not create a second remedy. See id.; see also Vega v. United States, 881 F.3d 1146, 1154–55 

(9th Cir. 2018) (declining to recognize Bivens action for due-process violation when 

alternative remedial structures were available). Goree had available to him, and indeed 

pursued, administrative remedies through the Federal Bureau of Prisons to seek relief 

based on the same conduct underlying this suit. And in at least one case—his claim 

against the officer for allegedly fabricating a disciplinary report—Goree succeeded in 

obtaining a remedy: he convinced a prison administrator on appeal that he did not 

receive adequate notice of the evidence used against him, and the report was expunged. 

The district judge also appropriately dismissed Goree’s negligence claim under 

the Federal Tort Claims Act, first and foremost because Goree did not sue the 

United States. See Hughes v. United States, 701 F.2d 56, 58 (7th Cir. 1982). But even if the 
No. 17-3144 Page 3 

district judge had allowed Goree to amend his complaint to fix that issue, Goree’s 

claims still would fail because of two other problems. 

First, the statute of limitations bars his claims. At screening the district court may 

invoke an affirmative defense, such as the statute of limitations, if it is clear from the 

complaint that the defense applies. See Khan v. United States, 808 F.3d 1169, 1172 (7th Cir. 

2015). Suits under the Federal Tort Claims Act must be brought within two years of the 

claim accruing and within six months of the “notice of final denial of the claim by the 

agency to which it was presented.” 28 U.S.C. § 2401. According to Goree’s pleadings, he 

timely filed his administrative claim within two years of the encumbrance. But after the 

Bureau of Prisons denied the claim on October 17, 2014, he did not file his complaint in 

the district court until June 30, 2017, well after the six-month deadline. 

Second, the Federal Tort Claims Act does not recognize claims that challenge an 

act of a government employee that is “based upon the exercise or performance or the 

failure to exercise or perform a discretionary function.” 28 U.S.C. § 2680(a). The 

exception applies to acts that entail an element of judgment or choice and involve 

public-policy considerations. United States v. Gaubert, 499 U.S. 315, 322–23 (1991). The 

basis of the trust-fund encumbrance in this case was a provision in the Bureau of 

Prisons’ Trust Fund/Deposit Fund Manual, granting the warden the discretion to 

encumber any inmate’s account based on “possible criminal activity,” among other 

things. Because the warden exercised his discretion in accordance with the Bureau of 

Prisons guideline, it “must be presumed” that his discretionary act was grounded in 

policy. Gaubert, 499 U.S. at 324. And Goree’s equal-protection claim fails for the same 

reason. The warden did not act arbitrarily or irrationally in freezing Goree’s account; 

rather, he rationally invoked the policy based on suspected criminal activity.

See Engquist v. Oregon Dep't of Agr., 553 U.S. 591, 602 (2008). 

The district judge dismissed all of Goree’s claims with prejudice. Although at 

screening complaints generally are dismissed without prejudice, Smith, 666 F.3d at 1040, 

Goree would not be able to cure the defects in his complaint with any amendment. 

AFFIRMED