Kevin Lee Grady, Sr. v. Kari Kinder

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted February 10, 2020
*

Decided February 11, 2020

Before

MICHAEL S. KANNE Circuit Judge

DIANE S. SYKES, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 19-1442

KEVIN LEE GRADY, SR.,
Plaintiff-Appellant,

v.

KARI KINDER, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of Illinois.

No. 18-cv-2159-JPG

J. Phil Gilbert,
Judge.

O R D E R
Kevin Grady, a federal inmate, sued prison staff for causing him to lose his job
when they would not allow him to sign his inmate financial plan with the caveat that he
did so “under duress.” He now appeals the dismissal of his suit. Because the district

*
The defendants were not served with process and are not participating in this
appeal. We have agreed to decide this case without oral argument because the
appellant’s brief and the 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).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

No. 19-1442 Page 2

court correctly determined that Grady did not plead any cognizable federal claim, we
affirm the judgment.
We accept as true the facts alleged in Grady’s complaint, which the district court
dismissed at screening for failure to state a claim. Smith v. Knox Cty. Jail, 666 F.3d 1037,
1039 (7th Cir. 2012). While incarcerated, Grady was employed by UNICOR (the trade
name for Federal Prison Industries, a government corporation that sells inmates’
services and goods). Having an income required him to participate in the Inmate
Financial Responsibility Program, through which inmates pay court-ordered financial
obligations during their incarceration by following an income-based payment plan.
See 28 C.F.R. §§ 545.10–545.11. Grady had participated in the program since 2013 and
signed a new payment plan at the end of 2017. But, in April 2018, a case manager
presented Grady with another new plan to sign, seemingly because his income required
an acceleration of his repayment rate. Grady objected to the new repayment rate and
the requirement that he pay his debt from his inmate account instead of with outside
sources such as family gifts. He asked to speak with a “representative” about his legal
rights, but the case manager would not allow it. So Grady asked to sign the plan with
the words “under duress” next to his signature, believing that this would “allow him to
preserve the right to argue his issues later.” The case manager told Grady that including
the words “under duress” would be taken as a refusal to agree to his plan and to
participate in the program. Grady therefore declined to sign at all. As a result, he lost
his job with UNICOR and was placed on commissary spending restrictions.
See 28 C.F.R. § 545.11(d) (mandating these penalties for refusing to participate in the
financial responsibility program). Grady complained to several members of the prison
staff about these events and at least started to pursue the prison’s grievance system.
Grady also filed suit, alleging that the case manager, and prison staff who did
not intervene when he complained, tortiously interfered with his UNICOR contract and
violated his due process rights, the Administrative Procedure Act, and Bureau of Prison
policies. The district court identified, and rejected, three possible theories of relief based
on the facts Grady alleged: (1) a claim for violation of his Fifth Amendment right to due
process (which was not cognizable under Bivens)
1
; (2) a claim under the Administrative
Procedure Act (which does not allow relief for noncompliance with policy statements);

1
Although Grady framed his due-process claim under 42 U.S.C. § 1983, the
district court properly understood him to have brought the action under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), because he sued
individual defendants who are federal actors.

No. 19-1442 Page 3

and (3) a tortious interference-with-contract claim, which could be brought only
under—but was barred by—the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674. The
district court dismissed Grady’s complaint with prejudice after screening. See 28 U.S.C.
§ 1915A. We review this decision de novo. Smith, 666 F.3d at 1039.
On appeal, Grady develops an argument only about the dismissal of his Bivens
claim, so we say nothing more about the others. See McCurry v. Kenco Logistics Servs.,
LLC, 942 F.3d 783, 789 (7th Cir. 2019) (failure to challenge, or even mention, dismissal of
claim in opening appellate brief is waiver).
Grady did not state a claim under Bivens. The Supreme Court has not recognized
a due-process violation of this sort as cognizable under Bivens, and Grady says nothing
about why we should recognize a new theory of relief here. See Ziglar v. Abbasi,
137 S. Ct. 1843, 1857 (2017) (noting that expanding Bivens remedy is “a ‘disfavored’
judicial activity”). Further, it would be inappropriate for us to do so where Grady had
access to the prison’s administrative remedies to challenge the handling of his payment
plan and his resulting loss of privileges. See 28 C.F.R. §§ 542.10–542.19 (setting forth
Bureau of Prisons’ administrative remedy program); see also Ziglar, 137 S. Ct. at 1858
(existence of alternative remedial structure weighs against expansion of Bivens);
United States v. Sawyer, 521 F.3d 792, 794 (7th Cir. 2008) (dissatisfied prisoners may
appeal administration of Inmate Financial Responsibility Program with Bureau of
Prisons). This system provides a sufficient avenue of redress, particularly because
removal from a prison job does not implicate liberty or property interests. See DeWalt
v. Carter, 224 F.3d 607, 613 (7th Cir. 2000); see also Vega v. United States, 881 F.3d 1146,
1153–55 (9th Cir. 2018) (declining to recognize Bivens action for Fifth Amendment
procedural-due-process claim based on prison disciplinary process when
administrative remedies were available).
Grady argues that a federal action must be available because the prison’s
administrative remedies program does not award damages. But the unavailability of
damages does not mean Grady can bypass alternative administrative remedies to raise
a constitutional claim; a remedial scheme need not provide “complete relief” to
preclude extension of Bivens. See Engel v. Buchan, 710 F.3d 698, 705 (7th Cir. 2013).
AFFIRMED