André Drew v. Murphy

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 17, 2024*
Decided May 21, 2024
Before
THOMAS L. KIRSCH II, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 24-1116
ANDRÉ DREW,
Plaintiff-Appellant,
v.
MURPHY, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 23-cv-01096-SPM
Stephen P. McGlynn,
Judge.
O R D E R
André Drew, a federal prisoner, appeals the dismissal of his lawsuit challenging
his required participation in a drug education course at the United States Penitentiary
in Marion, Illinois. See 18 U.S.C. § 3621(e). His complaint asserted that officials from the
* The appellees were not served with process and are not participating in this
appeal. We have agreed to decide the case without oral argument because the brief and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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Federal Bureau of Prisons violated his constitutional rights and the Administrative
Procedure Act, 5 U.S.C. §§ 701–06, when they threatened sanctions for his refusal to
participate in the program, and violated the Freedom of Information Act, id. § 552,
when they failed to respond to his request for documents explaining the grounds for his
enrollment in drug education. The district court dismissed the complaint at screening
based on claim preclusion and failure to state a claim, and we affirm the judgment.
We accept the complaint’s factual allegations as true and draw all reasonable
inferences in Drew’s favor. See Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015). Drew
has been a federal prisoner since 2007. After his intake screenings, neither of his first
two prisons required his participation in either the drug treatment program or a drug
education course. The intake meeting upon his transfer to Marion in April 2015
produced the same result. But weeks later, after a meeting with a unit case manager
(defendant Murphy, whose first name is not in the record) to discuss programs and
activities at the prison, Drew received notice from a drug education coordinator that he
had been enrolled in the prison’s drug education course. When he sought clarification,
the coordinator told him that his failure to participate in the program would result in
penalties, including a bar on obtaining employment with Federal Prison Industries,
receiving good time credits from program participation, or earning wages beyond
maintenance pay. Drew informed the coordinator that he had no history of substance
abuse and declined to participate. He spent the next five years trying to get information
from officials at Marion and the Bureau of Prisons about why drug education
programming was suddenly required.
Drew brought at least one federal lawsuit in the process. See Drew v. Figueredo,
20-cv-00337-JPG (S.D. Ill. filed Apr. 7, 2020). In that case, Drew sued Marion officials
and asserted that a policy of imposing sanctions for nonparticipation in drug education
programming on someone with no documented history of a substance abuse disorder
exceeded their statutory authority in violation of the Administrative Procedure Act, and
infringed upon his rights under the Fifth Amendment. The district court screened his
complaint under 28 U.S.C. § 1915A and, after giving Drew an opportunity to amend the
complaint, dismissed it with prejudice for failure to state a claim. Drew appealed but
failed to pay the filing fee, so his appeal was also dismissed.
In August 2022, Drew submitted a request under the Freedom of Information Act
to a Marion unit manager who was responsible for replying to documentation requests.
Drew asked for the Bureau to produce documentation supporting the decision to enroll
him in the drug education program. The unit manager responded that Drew would

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need to send the request to the Bureau’s Central Office in Washington, D.C. Drew did
so, and, two months later, he received a response stating that because his request was
“complex,” the agency needed additional time to respond.
In addition to his request under the Freedom of Information Act, Drew filed an
informal resolution request (the first stage of the inmate grievance process) with the
director of Marion’s drug programming. The director met with Drew and told him that
he was enrolled in the drug education course because of his marijuana use in the 1970s.
The director also stated, incorrectly, that “all inmates” who enter Marion are required to
participate in drug education courses. Drew sought medical documentation or a written
response from the director, but the director said he could not provide either.
Drew filed another federal complaint in 2023, initiating the case that is the subject
of this appeal. The complaint raised largely the same claims as his first, including
violations of the Administrative Procedure Act and infringement of his rights under the
Fifth and Eighth Amendments. He also alleged that officials violated the Freedom of
Information Act by not producing documents responsive to his valid request. The
district court again screened the complaint and concluded that claim preclusion barred
all claims except the newly accrued claim under the Freedom of Information Act, which
the court dismissed for failure to state a claim. The court imposed a deadline for
amending the complaint, at which time the case would be dismissed with prejudice
unless Drew filed an amended complaint that addressed the defects in the original.
Drew did not file an amended complaint before the deadline, so his case was dismissed
with prejudice. He now appeals the dismissal.
On appeal, Drew challenges the screening order, arguing that he sufficiently
pleaded his claims and that claim preclusion does not apply. We review the dismissal of
the complaint de novo. See Schillinger v. Kiley, 954 F.3d 990, 994 (7th Cir. 2020).
As to Drew’s constitutional claims and the alleged violation of the
Administrative Procedure Act, we agree with the district court that claim preclusion
applies. The doctrine of claim preclusion bars litigation of claims that were, or could
have been, decided on the merits in a prior lawsuit involving the same parties and the
same underlying transaction or occurrence. See United States ex rel. Conner v. Mahajan,
877 F.3d 264, 271 (7th Cir. 2017). Here, apart from the Freedom of Information Act
claim, Drew has re-alleged against the same officials the same claims from his
complaint in 2020; to the extent he adds a new Eighth Amendment theory, it
nevertheless pertains to the same nucleus of operative facts and could have been
brought in 2020. See Daza v. State, 2 F.4th 681, 684 (7th Cir. 2021). And dismissal of his

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2020 complaint for failure to state a claim is a dismissal on the merits that precludes
filing of a second suit on the same facts. See Coleman v. Labor & Indus. Review Comm’n of
Wis., 860 F.3d 461, 470 (7th Cir. 2017). Drew appears to argue that because the violations
are ongoing, he can bring suit. That point might respond to whether the claims are
timely (something we need not address), but it is irrelevant to claim preclusion.
This leaves only Drew’s claim under the Freedom of Information Act. The district
court correctly dismissed this claim too because the Act does not create a cause of action
against individual federal employees. See Henson v. Dep’t of Health & Hum. Servs., 892
F.3d 868, 874 (7th Cir. 2018). The Act allows a plaintiff to sue only a federal agency.
See 5 U.S.C. § 552(a)(4)(B) (“[T]he district court … has jurisdiction to enjoin the agency
from withholding agency records.”) (emphasis added). Regardless, his allegation that
the defendants “effectively denied” his document request is inaccurate according to his
own amended complaint. Though Drew had yet to receive documents from the Bureau
of Prisons’ Central Office when he filed suit, relief is warranted only when an agency
improperly withholds documents. Id. And here, the Bureau notified Drew that it
assigned his request to the “complex track,” placed it in chronological order according
to the date of receipt, and must work through a COVID-era backlog of requests.
Nothing in the Bureau’s reply suggests that it has improperly withheld Drew’s
requested documents.
AFFIRMED

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