2IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

Joseph Van Sach (17041-424), )

)

Plaintiff, )

) Case No. 20 C 50180

v. )

) Hon. Rebecca R. Pallmeyer

Department of Justice, et al., )

)

Defendants. )

ORDER

Plaintiff’s second amended complaint [19] is dismissed without prejudice. To proceed 

further, Plaintiff must submit a third amended complaint against proper defendant(s), limited to 

claims stemming from the events of April 2, 2019, and April 3, 2019. Failure to submit a third

amended complaint by October 8, 2020, will result in summary dismissal of this lawsuit. 

Plaintiff’s request for attorney representation, which appears in the body of his second amended 

complaint, is denied because he has not demonstrated that he is unable to afford counsel. See 

28 U.S.C. § 1915(e)(1); see also [18] (showing that Plaintiff receives financial assistance from his

family), and because Plaintiff appears to be capable of proceeding effectively on his own, at least 

at this stage. The Clerk of Court is directed to send Plaintiff an amended complaint form and 

instructions along with a copy of this order.

STATEMENT

Federal prisoner Joseph Van Sach, who is housed at the federal penitentiary in Thomson, 

Illinois (“USP Thomson”), initiated this lawsuit by submitting a 33-page complaint against no fewer 

than 41 defendants. He subsequently submitted an amended complaint that was considerably 

shorter than the original but nevertheless included claims that this court considered improperly 

joined in a single lawsuit. He also failed to identify a proper defendant to any of the claims. The 

court therefore dismissed the amended complaint with leave to amend, setting forth instructions 

about what Plaintiff must do to proceed with this lawsuit. See [17], July 20, 2020 Order. 

Plaintiff has submitted a second amended complaint, but it does not cure the deficiencies 

in Plaintiff’s pleading for two reasons. First, Plaintiff states on the first page of the second 

amended complaint that he is bringing this lawsuit under Bivens v. Six Unknown Named Agents 

of Federal Bureau of Narcotics, 403 U.S. 388 (1971), but the only defendant named in the caption 

of the pleading is “United States Penitentiary Thomson.” [19], pg. 1. As the court has explained, 

individual units of the federal government—such as USP Thomson, the Department of Justice, 

and the Federal Bureau of Prisons—are not proper defendants to a Bivens action. See [17], pg. 

3 (explaining that a claim under Bivens is based on individual liability and may be brought only 

against the individual or individuals who participated in the alleged conduct). 

Plaintiff’s choice of USP Thomson as the sole defendant to his second amended complaint 

suggests that he might want to proceed on a theory that the United States is responsible for the 

conduct of its employees. If this is so, then his claims must be brought under the Federal Tort 
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Claims Act (FTCA). See 28 U.S.C. § 1346(b)(1) (authorizing claims for “injury or loss of property, 

or personal injury or death caused by the negligent or wrongful act or omission of any employee 

of the Government while acting within the scope of his office or employment, under circumstances 

where the United States, if a private person, would be liable to the claimant in accordance with 

the law of the place where the act or omission occurred”). The United States is the only proper 

defendant to an FTCA claim. Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008); see Hughes 

v. United States, 701 F.2d 56, 58 (7th Cir. 1982) (explaining that a federal agency cannot be sued 

in its own name under the FTCA). 

Because Plaintiff may not proceed against USP Thomson under either Bivens or the 

FTCA, the complaint must be dismissed for that reason. There are other issues as well, however. 

Plaintiff has not yet followed the court’s instruction that he must limit any amended pleading to 

properly joined claims. Specifically, Plaintiff continues to assert in the second amended 

complaint claims stemming from three distinct events or series of events: (1) three alleged

assaults that began on the evening of April 2, 2019, and continued through the afternoon of April 

3, 2019; (2) an ear-pull on June 6, 2019; and (3) two alleged assaults on October 4, 2019. See 

Dkt. 19, pg. 4-5. He also complains about the medical care he received following the incidents 

in April and October, which necessarily concern conduct by different individuals than those

involved in the alleged uses of force. Plaintiff seems to understand that his second amended

complaint does not comply with the court’s prior orders: He argues, “With all due respect to the 

court and those involved in this case, any reasonable juror will see the connection of the following 

six assaults that have a long connecting paper trail established with one another. I am no legal 

expert, but any attorney that would help me can see the connection to all these criminal assaults 

against me by United States Penitentiary Thomson staff members[.]” [19], pg. 4.

Courts generally consider claims to “arise out of the same transaction or occurrence when 

the likelihood of overlapping proof and duplication in testimony indicates that separate trials would 

result in delay, inconvenience, and added expense to the parties and to the court.” Eclipse Mfg. 

Co. v. M & M Rental Ctr., Inc., 521 F. Supp. 2d 739, 744 (N.D. Ill. 2007) (quoting 7 Charles Alan 

Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE & PROCEDURE § 1653 (3d ed. 

2001)). Here, the alleged uses of force underlying Plaintiff’s claims—i.e., three incidents from 

April 2, 2019 to April 3, 2019; one incident in June 2019; and two incidents during a single day in 

October 2019—will not involve overlapping evidence. Instead, each alleged use of force will 

require discovery unique to the circumstances giving rise to (and justification for) the use of force. 

The court stands by its conclusion that the April 2019 incidents do not appear to be related for 

joinder purposes to the June 2019 ear-pull or the October 2019 incidents.

This is so even though Plaintiff tries to tie each of the alleged incidents together with a 

theory that any incidents following the initial use of force on April 2, 2019, were retaliatory. The 

theory that all of the episodes were retaliatory is not enough to permit claims stemming from three

events--all separate and distinct in every other way--to proceed in the same lawsuit. Plaintiff also 

has expressed his intention to continue his effort to include, in this lawsuit, claims concerning 

every encounter he has had with correctional officers at Thomson. See, e.g., [18], pg. 1-2. He 

may not proceed in this manner.

A court may, at its discretion and at any time, “sever any claim against a party.” Fed. R. 

Civ. P. 21; see Vermillion v. Levenhagen, No. 14-2327, 2015 WL 927356, at *4 (7th Cir. Mar. 5, 

2015) (explaining that district court has discretion to sever “discrete and separate” claims). The 

court gave Plaintiff two chances to narrow his claims on his own, but he has not done so. The 
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court therefore will, on its own motion, limit the scope of this lawsuit to the first events in Plaintiff’s 

chronology: claims concerning the purported uses of force against Plaintiff at USP Thomson on 

April 2 and April 3, 2019. In limiting the complaint in this way, the court expresses no opinion 

concerning the merits of any of Plaintiff’s claims, or of any potential defenses. The court will 

conduct the review required by 28 U.S.C. § 1915A after Plaintiff has submitted a third amended 

complaint that complies with the instructions in this order.

To proceed with this action, Plaintiff must submit a third amended complaint that limits his 

claims to those stemming from the events of April 2 and April 3, 2019. He also must identify a 

proper defendant(s) to his claims. He must write the name of the defendant(s) on the first page 

of the amended complaint form, using the lines above the notation “(Enter above the full name of 

ALL defendants in this action. Do not use ‘et al.’),” and in section II. on the second page of the 

form. Plaintiff then must explain, in the “Statement of Claim” section, what each named 

defendant allegedly did to violate his rights. In deciding how to proceed, Plaintiff is reminded that 

Plaintiff may need to exhaust administrative remedies under either Bivens or the FTCA and that 

available remedies may differ, depending on the claim or claims he chooses to pursue in this 

lawsuit. See Porter v. Nussle, 534 U.S. 516, 524 (2002) (explaining that PLRA exhaustion 

requirement applies to Bivens actions); 28 U.S.C. § 2675(a) & 28 C.F.R. § 14.2(a) (re FTCA 

claims).

 

Any third amended complaint must be submitted on the court’s required form, see Local 

Rule 81.1, and must comport with Federal Rule of Civil Procedure 11. That Rule provides that 

by signing a pleading, a party represents to the court that his claims are warranted by existing law 

and that the factual contentions have or will have evidentiary support. FED. R. CIV. P. 11(b). 

Plaintiff must write both the case number and the judge’s name on the third amended complaint, 

sign it, and return it to the Prisoner Correspondent. Plaintiff is cautioned that an amended 

pleading supersedes all prior pleadings and must stand complete on its own. Therefore, all 

allegations against all defendants must be set forth in the third amended complaint without 

reference to prior complaints. Plaintiff is advised to keep a copy for his files.

The Clerk will provide Plaintiff with an amended civil rights complaint form and instructions 

along with a copy of this order. Failure to submit a third amended complaint by October 8, 2020 

will result in summary dismissal of this lawsuit.

ENTER:

Date: September 1, 2020 ________________________________

REBECCA R. PALLMEYER

United States District Judge